(2018) LPELR-46080(CA)

Transcription

1 A-G AKWA IBOM STATE & ANOR v. UDOH CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON FRIDAY, 30TH NOVEMBER, 2018 Suit No: CA/C/160/2015 MOJEED ADEKUNLE OWOADE YARGATA BYENCHIT NIMPAR MUHAMMED LAWAL SHUAIBU Before Their Lordships: Between 1. ATTORNEY-GENERAL, AKWA IBOM STATE 2. COMMISSIONER OF POLICE, AKWA IBOM STATE And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal JOSEPH KOFI UDOH - Respondent(s) RATIO DECIDENDI 1. APPEAL - REPLY BRIEF: Whether a reply brief is meant to improve on the quality of the argument in the Appellant's brief - Appellant(s) "Before proceeding to resolve the lone issue in this appeal, it is very pertinent to comment on the appellant's reply brief which is much more elaborate than the appellant's brief of argument. A reply brief is specifically meant to answer new and substantial point arising from the respondent's brief, and not to improve, garnish, embelish and dilate on the appellant's brief. See OGOLO V FUBARA (2003)11 NWLR (pt. 831) 231. I have rightly stated that the appellant's reply brief in this case is an improved version of his main brief. That being the position, this Court has a duty to discountenance a reply brief that sought to improve on the appellant's brief and the said appellant's reply brief is hereby discountenanced."per SHUAIBU, J.C.A. (P. 7, Paras. B-F) - read in context 2. APPEAL - GROUND(S) OF APPEAL: Effect of incompetent grounds of appeal and the issues formulated thereon "It is normal to first consider the potency of the preliminary objection before proceeding to consider the merit of the cross-appeal. The preliminary objection is premised on the competence of the grounds of cross-appeal. A challenge to the competence of a ground of appeal or cross-appeal as the case may be, is a fundamental point of law. The reason is that if the particular ground of appeal being attacked is found to be incompetent, then the Court is robed of the competence to entertain such ground of appeal. The necessary consequence is that the particular grounds is to be struck out. See F.B.N. PLC V AKAPARA BONG COMMUNITY RANK LTD (2006)1 NLR (pt 962) 438 and OKAFOR V INEC (2010) 3, NWLR (pt. 1180)1. Also in INYANG V EBONG (2002) FLWR (pt 125) 703 at 734, it was held that a notice of appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of appeal has inherent power to strike it out on the ground that it is incompetent."per SHUAIBU, J.C.A. (Pp , Paras. D-C) - read in context 3. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal is directed at an obiter dictum or the ratio "...The first ground of the objection is that the grounds of the cross-appeal do not arise from the judgment of the trial Court. Grounds of appeal must be based or predicated on the ratio of the judgment of the Court appealed against which means that an obiter dicta in a judgment of the Court cannot be subject of appeal. The ratio decidendi of the case is however not determined from isolated dictum in the judgment. It is determined based upon considerations of issues in the dispute between the parties vis a vis the facts pleaded and found in support of the contention of the issues. Hence, every judgment ought to be read as applicable to the particular facts proved or assumed to be proved. See U.B.A. V STAHLBAU GMBH (1989) 6 SC (pt 1) 22 at Considering the facts of the case giving rise to the judgment being appealed against, the two grounds of cross-appeal are clearly challenging the trial Court's reasoning for its decision and therefore emanated from the said decision. They are not merely an obiter but based on the ratio decidendi of the case."per SHUAIBU, J.C.A. (Pp , Paras. C-B) - read in context

2 4. APPEAL - LEAVE OF COURT/LEAVE TO APPEAL: Whether leave of Court is required to appeal against a final decision of Court "...The second ground of the objection deals with the imperativeness of seeking leave to appeal, the grounds being that of mixed law and facts. In OGBECHIE V ONOCHIE (1986)2 NWLR (pt. 23) 484 at , Kayode Eso, JSC said: "There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but, what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one questioning the evaluation of facts by the lower Tribunal before the application of law in which case it would amount to question of mixed law and fact. The issue of prove fact is easier to determine..." Parties in the instant case seems to be ad-idem that grounds of cross appeal are of mixed law and facts. The only area of divergence is on the requirement of leave. I agree with the submission of the learned counsel for the cross-appellant that by virtue of Section 241 (1) (a) of the 1999 Constitution (as amended) that a right of appeal is conferred on a dissatisfied party to appeal to the Court of appeal on any ground be it pure law, mixed law and facts. See TOTAL INTERNATIONAL LTD V AWOGBORO (1994) 4 NWLR (pt 337) 147. The decision on appeal, being a final decision, no leave of Court is required."per SHUAIBU, J.C.A. (Pp , Paras. C-D) - read in context 5. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of an issue for determination not arising or relating to any ground of appeal "The third and final ground of the objection is on the failure of the cross appellant to tie or connect any of the issues for determination with the grounds of cross appeal. Issues for determination of an appeal are generally meant to flow and be derivable from the ground of appeal. But where they do not so flow or are not so distillable from any ground of appeal, such issues become incompetent and are liable to be struck out by the Court. See NTEOGWUILE V OTUO (2001)16 NWLR (pt. 738) 58 and OLOWOSAGO V ADEBANJO (1988)4 NWLR (pt. 88) 275. Issues Nos. 1 and 2 for the determination of cross appeal are clearly not linked or connected to any grounds. Where an issue meant for determination in any appeal is not related or married to a ground of appeal, it is incompetent. See KOKORO-OWO V LAGOS STATE GOVERNMENT (2001) 11 NWLR (pt. 732) 237. In conclusion, the incompetence of the issues for determination has invariably rendered the grounds of the cross-appeal also incompetent. The preliminary objection therefore succeeds in part. I hereby strike out the incompetent issues together with the notice of cross-appeal."per SHUAIBU, J.C.A. (Pp , Paras. E-E) - read in context

3 6. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the enforcement of fundamental right should be the main claim in an application brought under the Fundamental Rights Enforcement Rules "The appellant's argument in respect of the lone issue are of two folds even though intertwine and or interwoven. Firstly, it was argued that, at the time of commencing the fundamental rights application, the alleged violation has ceased and secondly, the respondents' main or principal claim was not predicated on the breach of fundamental rights. The provisions of Section 46 (1) of the 1999 Constitution (as amended) provides that any person who alleges that any of the provision of chapter IV of the said Constitution has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court for redress. The aim of the above is to provide a simple and effective judicial process for the enforcements of Fundamental rights in order to avoid the cumbersome procedure for their enforcement under the rules of the common law, or other statutory provisions. See OGUGU V STATE (1994) 9 NWLR (pt. 366) 1 and ONWO V OKO (1999) 6 NWLR (pt. 456) 584. In SEA TRUCKS LTD V ANIGBORO (2001) FWLR (pt. 37) 1008 at 1026, it was emphatically held that the correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such relief and the facts relied upon. I have right from the onset reproduced the reliefs sought by the respondent at the trial Court and that same questions the constitutionality of his arrest and detention at the police station vis a vis his detention at Eket Federal Prison for an aggregate period of eight years without trial. The grounds upon which the respondent sought the said reliefs are at pages of the record of this appeal and same are reproduced hereunder as follows:- 1. The detention of the applicant by the 2nd respondent in the manner complained of in his affidavit is a violation of his right to personal liberty, guaranteed under Section 35 of the Nigerian Constitution 1999 and Article 6 of the African Charter on Human and People's Right (Ratification and Enforcement) Cap A9 LFN The restriction of the movement of the applicant by the 2nd respondent violates the right of the applicant to freedom of movement guaranteed under Section 41 of the 1999 Constitution, and under the Article 12, of the African Charter on Human and People's Rights. 3. The detention of the applicant in the circumstances herein described is a violation of his right to dignity of his person guaranteed under Section 34 of the 1999 Constitution and Article 5 of the African Charter on Human and People's Rights herein before mentioned. 4. The 8 year term incarceration of the applicant in prison awaiting trial at the behest and inaction of both respondents and negligence of the 1st respondent on case file custody and eventual report of loss without arraignment or plea, no doubt, violates his right to fair hearing and personal liberty under Sections 35 and 36 of the 1999 Constitution and under Article 6 of the African Charter on Human and People's Rights (Ratification and Enforcement) Act Cap A9 LFN The restriction of the movement of the applicant by the respondents violates the right of the applicant to freedom movement guaranteed under Section 41 of the 1999 Constitution and under Article 12 of the aforementioned African Charter on Human and people's rights. 6. The incarceration of the applicant in the manner, circumstance and environment described herein is a violation of his right to dignity of his human person guaranteed under Section 34 of the 1999 Constitution and Article 5 of the African Charter on Human and People's Rights herein before mentioned. 7. The remand of the applicant by the respondents for 8 years without trial or arraignment is violation of the applicant's right to fair hearing protected under Section 36 of the 1999 constitution. Also the pertinent facts relied by the respondent in seeking the said reliefs are stated in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, and 17 of the affidavit in support of the originating motion and it read thus:- 2. The police took me and later on upon a charge NO. MNU/11C/2004 I was before the Chief Magistrate Court, Nsit Ubium L.G.A. 3. I never got my freedom and my rights were violated as I lost so much in life and opportunity until being released in 2012, precisely 7 years, 10 months and 14 days from the date of arrest and release under prerogative of mercy by the Honourable Chief Judge of Akwa Ibom State. 4. As at arrest, I was 17 years old and enrolled for final exams in primary six at Government Primary School Ikot Okpudo village in Nsit Ubium L.G.A. The agents of the 2nd respondent whisked me away from my home to Nsit Ubium divisional police Headquarters and later Ikot Akpn Abia before being incarcerated in prison. 5. At the police station, I was informed that I had been arrested on allegation of "conspiracy and pouring fuel" on one Sylvester Tom Umoh". 6. Myself and 2 others Donald Ekong Frank (1st accused) and Obioma Benjamin (2nd accused) were arrested. These suspects had since left custody. 7. The alleged victim was never brought to identify or confront me nor throughout my remand in police or prison custody. I did not commit the offence alleged and knew nothing about the offences alleged. As I was never arraigned. I had no means of asserting my innocence before the law and could not afford legal representation. 8. I was eventually sent to Eket prison along with the earlier two persons who later got discharged. 9. In 2011 during prison visits by Hon. Justice Idongesit Ntem Isua, the Akwa Ibom State Chief Judge, my counsel Ben Ndede Esq., of Justice Forte Chambers mentioned my case from the cause list. The lead state counsel then present announced loudly in the large open hall of the Court assize that my case file had been eventually found. I observed helplessly from the door entrance as my said lawyer who was ready to have my case heard relapsed as the learned Chief Judge hinted my counsel kindly avert my arraignment later, based on the new commitment of the 1st respondent to cause the hearing of my case, which never was. The compiled list of awaiting trial returns as at January, 2011 is hereby attached and marked Exhibit BN. 10. Sometime later in January, 2011, I was again visited by my counsel Ben Ndede Esq., of Justice Forte Chambers who being assigned prison decongestion cases by the Federal Attorney General decided to add my case to the lot and undertook to defend me, Pro bono and on the opinion of prison officials of the welfare unit he later filed processes for the enforcement of my fundamental right. 11. I was detained without bail at the instance of the inaction of respondents who took no interest in prosecuting me in the interest of justice except just putting me away and especially the 1st respondent had been careless in not prosecuting me. Between the respondents my file was never found. That cost me several years of remand and affected my upbringing and educational pursuits. I lost my mother from the headache and was only informed a year after her demise and had no family member with means to fight my cause. 12. While in detention, I was severally molested and abused by fellow inmates. I was in jail under extremely dehumanizing conditions. We slept, bathed, ate and defecated in the same confinement with uncertainty of any reprieve. The prison cell was extremely dirty and unkempt. I suffered severe mental torture especially since I was underage at the time of confinement. 13. The other persons arrested on record were since released from detention between 2005 and 2006 respectively without trial as they had the means or connections to effect their release. 14. In 2012, the visiting Chief Judge of Akwa Ibom State Hon. Justice Idongesit Ntem Isua ordered my release from detention after stating that my continued detention was both unconstitutional and unconscionable. The malicious collusion of the police officers and prison officials to keep me in indefinite incarceration can also be inferred in her statement when she said my (case file) was forwarded to the ministry of justice, the DPP says they cannot trace. The certificate of discharge from the Eket Prisons is marked Exhibit BN I am now an orphan, my parents are dead. My mother reportedly died as a result of the heartbreak and trauma from my being in unlawful detention and I had to wait for one year to know about her death. 17. I have suffered psychological trauma and with the result that an intergral part of my youthful life is wasted. Furthering my education or learning a trade after the unlawful incarceration is a step price that comes with my innocence. Having chronicled the reliefs sought by the respondent, the grounds for such reliefs and the facts relied upon, same reveals the followings: (a) That the respondent and two others were arrested and detained in 2004 based on criminal allegations. (b) The respondent and the two other suspects were arraigned before the Chief Magistrate Court, Nsit Ubium L.G.A. on charge NO. MNU/11C/2004. (c) Consequent to the said arraignment, they were remanded in Eket prison upon judicial orders but between , the other two suspects Donald Ekong Frank and Obioma Benjamin were released. (d) While the impecuniousness of the respondent account for his inability to secure the services of counsel, the negligence and carelessness of prosecution led to the missing of the relevant cases file. (e) The combination of (d) above account for the respondent's prolonged detention. It has since been established by plethora of judicial authorities 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. A careful perusal of the respondent's claim before the trial Court shows that both the arrest and the detention was rooted on the appellants' lackadaisical attitude in missing the relevant case file. Facts they say, are the spring board of law. It is the facts of the case that determine the appropriate remedy. In the instant case, the unenthusiastic interest of the appellant to diligently prosecute the respondent being the basis of this action now on appeal, the respondent's reliefs lie in tort of negligence. It is settled that reliefs which are tortuous in nature cannot be sought pursuant to the fundamental right (Enforcement procedure) Rules, even if there exists some fundamental rights infringement or violation. Such reliefs can only be claimed strictly by following the common law procedure by issuance of a Writ of summons and filing pleadings. See NWANWUNA V NWAEBILI (supra). Also in ABDULHAMID V AKAR (supra), PER PATS - ACHOLONU, JSC at page 147 paras C - F: "I must state that it is becoming fashionable nowadays for litigants to institute an action by way of asking for relief for infraction of their constitutional rights in a matter where the facts reveal that an action should conceivably lie in tort or contract. It is difficult to say whether recourse to this inelegant procedure is borne out of the ignorance of counsel or mistake. Whichever is the case, it is important to state and emphasise that in a case of the nature before us, counsel should have studied the facts of the case very well." The respondent was clearly wrong to have commenced the action pursuant to fundamental rights (Enforcement procedure) Rules. Where a law provides that certain proceedings in respect of a particular cause of action shall be commenced by one method, a litigant will be wrong to commence such proceedings by another method. See OBAJIMI V AG WESTERN NIGERIA (1967) 1 ALL NLR 31. The next germane issue is that enforcement of fundamental right of the respondent being an auxiliary claim cannot activate the competence of the trial Court. I have held that the claim of the respondent lie in tort and thus whatever claim the respondent may have respecting the infraction of his fundamental rights, such claim(s) may at best be auxiliary while the principal claim was in tort. Where the main or principal claim is not for enforcement or securing the enforcement of fundamental rights, the jurisdiction of the Court cannot be properly exercised. See TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 UNIVERSITY OF ILORIN V OLUWADARE (2006) 6-7 SC 154, GAFAR V THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) 1-2 SC 154 at 209 and AMALE V SOKOTO LOCAL GOVERNMENT & ORS (Supra). In conclusion, the appeal succeeds as the trial Court lacks the requisite competence and jurisdiction to hear and determine the respondent's claim under the Fundamental Rights (Enforcement procedure) Rules. The entire proceedings in suit NO. HU/502/2013 is accordingly struck out and the judgment of the trial Court delivered on 13th November, 2014 by Hon. Justice Ekaette F. F. Obot is hereby set aside."per SHUAIBU, J.C.A. (Pp. 7-19, Paras. F-D) - read in context

4 7. CONSTITUTIONAL LAW - ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHT(S): Whether the enforcement of fundamental right must be the main claim in an application brought under the Fundamental Rights Enforcement Rules "I had the privilege of reading in draft the judgment just delivered by my brother, MUHAMMED LAWAL SHUAIBU, JCA and I am in complete agreement with the manner he determined the appeal. The Supreme Court settled the issue of a principal and ancillary claim where abuse of human rights alleged is a subsidiary and when a claim can come under the fundamental Rights Procedure in the case of EMEKA VS. OKOROAFOR & ORS (2017) LPELR (SC) which held thus: "When the main or principal relief or redress cannot be raised or enforced under the FREPR; it is immaterial that in the course of committing the cause of action for the main complaint some ancillary breaches of fundamental rights were committed. See TUKUR VS. GOVT., OF TARABA STATE (1997) 6 NWLR (PT. 510) 549; UNIVERSITY OF ILORIN & ANOR. VS. OLUWADARE (2006) 6-7 SC. 154; JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 1 SC (PT. 2) 100. I also agree with the resolution of the cross- Appeal."Per NIMPAR, J.C.A. (Pp , Paras. B-A) - read in context

5 MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Hon. Justice Ekaete F. F. Obot of the High Court of Justice, Uyo, Akwa Ibom State delivered on 13th November, 2014 wherein the learned trial judge found that the incarceration of the appellant therein without trial for over eight years amounted to an infraction of his fundamental rights and therefore ordered the respondents to pay him N4 Million general and exemplary damages and N50,000 costs. The respondent as applicant before the trial Court commenced an action under the Fundamental Rights (Enforcement Procedure) Rules 2009 against the appellants seeking for the following reliefs: (a) A Declaration that the arrest from Ikot Okpondo and detention of the applicant at the Nsit Ubium Police Station from 29th March, 2004 to 14th April, 2004 is unconstitutional and violates the applicant s guaranteed rights to personal liberty, freedom personal dignity, protected by the Constitution of the Federal Republic of Nigeria. 1

6 (b) A declaration that the eventual detention of the applicant at the Eket Federal Prisons without arraignment or trial howsoever from the year 2004 only to declare a misplaced file until his eventual prerogative of mercy release in 2012 is unconstitutional, unethical and cruel and impinges on his right to personal liberty. Section 35 (4) (a) Personal dignity, Sections 34(1), and fair hearing. Section 36 (1) (4) of 1999 Constitution (as amended) and further violates Articles 4, 6, and 12 of the African Charter on Human and people s Right (Ratification and Enforcement) Act Cap. A9 LFN (c) Damages of N7,000, (Seven Million Naira) specially against the 2nd respondent for infringing of the Fundamental Right of the applicant by lengthy 16 day detention torture and inhuman treatment from April 14, 2004 day of Court appearance prior to incarceration at Federal Prison. (d) Award of General Damages of N157,000,000 (One Hundred and Fifty Million Naira) jointly and severally against all the respondents in favour of the applicant for the infringement of his human rights by unlawful incarceration in prison custody for almost 8 years. 2

7 (e) Exemplary Damages of N10,000, (Ten Million Naira) jointly and severally against all the respondents in favour of the applicant. (f) Order of Written Apology from each of the respondents. (g) Such further order or orders this Court may deem fit to make in the circumstances of this suit. The respondents filed counter-affidavit denying any infraction of his Fundamental Rights. After hearing argument of counsel on both sides and in a reserved and considered ruling delivered on 13th November, 2014, learned trial judge held that no decent society should allow such flagrant abuse of the rights of its citizens and consequently, ordered as follows:- 1. That the Respondent shall pay jointly and severally to the Applicant, the sum of N4,000, (Four Million Naira) as general and exemplary damages for the unlawful incarceration in prison custody for almost eight years. 2. That the Respondents shall jointly and severally pay to the Applicant the sum of N50,000 (Fifty Thousand Naira) as costs of this action. 3

8 Dissatisfied with the ruling of the trial Court, the respondents appealed to this Court through a notice of appeal filed on 18th December, The said notice of appeal contains two grounds of appeal at pages of the record of this appeal. Distilled from the said two grounds of appeal learned appellants counsel, Joseph D. Umoren, formulated a lone issue for the determination of this appeal as follows: Whether the learned trial judge had the jurisdiction to entertain suit NO. HU/MISC/502/2013 under the Fundamental Rights Enforcement Rules, having regards to the nature of claims stated and relief sought in the action. Learned counsel for the respondent, Ben Ndede, Esq., impliedly adopted the appellant s lone issue. The appellants also filed a reply brief on 31/3/2017 but deemed on 10/4/2018. The respondent in addition crossappealed through a notice of cross-appeal filed on 22/5/2018. Arguing the lone issue, learned appellants counsel contended that the applicant s suit NO. HU/502/2013 was filed on 11/3/2016 whereas he was released on 29/2/2013, thus at the time of filing the originating motion, there was no threat to his liberty whatsoever.

9 4

10 He referred to Order 11 Rules 1, 2, and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 in submitting that the suit was improperly commenced at the trial Court and that incompetence robbed the trial Court of jurisdiction. Still in argument, learned counsel submitted that the applicant s reliefs at the trial Court being tortuous in nature, same cannot be brought under the Fundamental Rights (Enforcement Procedure) Rules, even if there exists some Fundamental rights infringement or violation. Where a specific remedy is prescribed by a statute, it cannot be circumvented by recourse to declarations in a fundamental rights action when at that particular time there was no breach to warrant the invocation of that legal procedure. He referred to ABDULHAMID V AKAR (2006) 13 NWLR (pt. 906) 127 and NWANWUNA V NWAEBILI (2011) 4 NWLR (pt. 1237) 290. In further argument, learned counsel submitted that where the principal relief in an action is not the enforcement of fundamental right, such action must be commenced by issuance of the writ of summons, in accordance with the appropriate High Court Civil 5

11 Procedure Rules. He referred to MODU V NEBOH (2002) 2 CHR 67 at 86 MADUKOLU V NKEMDILIM (1962) 2, SCNCR 341 and AMALE V SOKOTO LOCAL GOVERNMENT & ORS (2012) 2 SCM 45 at to the effect that enforcement of fundamental right or securing the enforcement thereof did not form the basis of the respondent s action. On his part, learned counsel for the respondent placed reliance on Section 46 (2) of the 1999 Constitution as amended and Order 11 Rules 1 and 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 in submitting that in bringing an action to enforce his fundamental, the respondent can seek redress against a completed act of violation. He further submitted that it is the originating process that is to be considered in determining whether a Court has jurisdiction, or not and that contruing the averments in the supporting affidavit, the reliefs sought as well as the grounds for the reliefs, the trial Court was right in assuming jurisdiction. That even if there had been some tortuous flavor in claim of the respondent, same according to the learned counsel are not 6

12 sufficient to rob the lower Court of jurisdiction as the principal claim was founded upon enforcement of fundamental right. He referred to OBASANJO FARMS NIGERIA LTD V MUHAMMAD (2016) LPELR RESOLUTIONS Before proceeding to resolve the lone issue in this appeal, it is very pertinent to comment on the appellant s reply brief which is much more elaborate than the appellant s brief of argument. A reply brief is specifically meant to answer new and substantial point arising from the respondent s brief, and not to improve, garnish, embelish and dilate on the appellant s brief. See OGOLO V FUBARA (2003)11 NWLR (pt. 831) 231. I have rightly stated that the appellant s reply brief in this case is an improved version of his main brief. That being the position, this Court has a duty to discountenance a reply brief that sought to improve on the appellant s brief and the said appellant s reply brief is hereby discountenanced. The appellant s argument in respect of the lone issue are of two folds even though intertwine and or 7

13 interwoven. Firstly, it was argued that, at the time of commencing the fundamental rights application, the alleged violation has ceased and secondly, the respondents main or principal claim was not predicated on the breach of fundamental rights. The provisions of Section 46 (1) of the 1999 Constitution (as amended) provides that any person who alleges that any of the provision of Chapter IV of the said Constitution has been, is being or is likely to be contravened in any state in relation to him may apply to a High Court for redress. The aim of the above is to provide a simple and effective judicial process for the enforcements of Fundamental rights in order to avoid the cumbersome procedure for their enforcement under the rules of the common law, or other statutory provisions. See OGUGU V STATE (1994) 9 NWLR (pt. 366) 1 and ONWO V OKO (1999) 6 NWLR (pt. 456) 584. In SEA TRUCKS LTD V ANIGBORO (2001) FWLR (pt. 37) 1008 at 1026, it was emphatically held that the correct approach in a claim for the enforcement of fundamental rights is to examine the reliefs sought, the grounds for such relief and the facts relied upon. 8

14 I have right from the onset reproduced the reliefs sought by the respondent at the trial Court and that same questions the constitutionality of his arrest and detention at the police station vis a vis his detention at Eket Federal Prison for an aggregate period of eight years without trial. The grounds upon which the respondent sought the said reliefs are at pages of the record of this appeal and same are reproduced hereunder as follows:- 1. The detention of the applicant by the 2nd respondent in the manner complained of in his affidavit is a violation of his right to personal liberty, guaranteed under Section 35 of the Nigerian Constitution 1999 and Article 6 of the African Charter on Human and People s Right (Ratification and Enforcement) Cap A9 LFN The restriction of the movement of the applicant by the 2nd respondent violates the right of the applicant to freedom of movement guaranteed under Section 41 of the 1999 Constitution, and under the Article 12, of the African Charter on Human and People s Rights. 9

15 3. The detention of the applicant in the circumstances herein described is a violation of his right to dignity of his person guaranteed under Section 34 of the 1999 Constitution and Article 5 of the African Charter on Human and People s Rights herein before mentioned. 4. The 8 year term incarceration of the applicant in prison awaiting trial at the behest and inaction of both respondents and negligence of the 1st respondent on case file custody and eventual report of loss without arraignment or plea, no doubt, violates his right to fair hearing and personal liberty under Sections 35 and 36 of the 1999 Constitution and under Article 6 of the African Charter on Human and People s Rights (Ratification and Enforcement) Act Cap A9 LFN The restriction of the movement of the applicant by the respondents violates the right of the applicant to freedom movement guaranteed under Section 41 of the 1999 Constitution and under Article 12 of the aforementioned African Charter on Human and People s rights. 10

16 6. The incarceration of the applicant in the manner, circumstance and environment described herein is a violation of his right to dignity of his human person guaranteed under Section 34 of the 1999 Constitution and Article 5 of the African Charter on Human and People s Rights herein before mentioned. 7. The remand of the applicant by the respondents for 8 years without trial or arraignment is violation of the applicant s right to fair hearing protected under Section 36 of the 1999 constitution. Also the pertinent facts relied by the respondent in seeking the said reliefs are stated in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, and 17 of the affidavit in support of the originating motion and it read thus:- 2. The police took me and later on upon a charge NO. MNU/11C/2004 I was before the Chief Magistrate Court, Nsit Ubium L.G.A. 3. I never got my freedom and my rights were violated as I lost so much in life and opportunity until being released in 2012, precisely 7 years, 10 months and 14 days from the date of arrest and release under prerogative of mercy by the Honourable Chief Judge of Akwa Ibom State. 11

17 4. As at arrest, I was 17 years old and enrolled for final exams in primary six at Government Primary School Ikot Okpudo village in Nsit Ubium L.G.A. The agents of the 2nd respondent whisked me away from my home to Nsit Ubium divisional police Headquarters and later Ikot Akpn Abia before being incarcerated in prison. 5. At the police station, I was informed that I had been arrested on allegation of conspiracy and pouring fuel on one Sylvester Tom Umoh. 6. Myself and 2 others Donald Ekong Frank (1st accused) and Obioma Benjamin (2nd accused) were arrested. These suspects had since left custody. 7. The alleged victim was never brought to identify or confront me nor throughout my remand in police or prison custody. I did not commit the offence alleged and knew nothing about the offences alleged. As I was never arraigned. I had no means of asserting my innocence before the law and could not afford legal representation. 8. I was eventually sent to Eket prison along with the earlier two persons who later got discharged. 9. In 2011 during prison visits by Hon. Justice Idongesit Ntem Isua, the Akwa Ibom State 12

18 Chief Judge, my counsel Ben Ndede Esq., of Justice Forte Chambers mentioned my case from the cause list. The lead state counsel then present announced loudly in the large open hall of the Court assize that my case file had been eventually found. I observed helplessly from the door entrance as my said lawyer who was ready to have my case heard relapsed as the learned Chief Judge hinted my counsel kindly avert my arraignment later, based on the new commitment of the 1st respondent to cause the hearing of my case, which never was. The compiled list of awaiting trial returns as at January, 2011 is hereby attached and marked Exhibit BN. 10. Sometime later in January, 2011, I was again visited by my counsel Ben Ndede Esq., of Justice Forte Chambers who being assigned prison decongestion cases by the Federal Attorney General decided to add my case to the lot and undertook to defend me, Pro bono and on the opinion of prison officials of the welfare unit he later filed processes for the enforcement of my fundamental right. 11. I was detained without bail at the instance of the inaction of respondents who took no interest in prosecuting me 13

19 in the interest of justice except just putting me away and especially the 1st respondent had been careless in not prosecuting me. Between the respondents my file was never found. That cost me several years of remand and affected my upbringing and educational pursuits. I lost my mother from the headache and was only informed a year after her demise and had no family member with means to fight my cause. 12. While in detention, I was severally molested and abused by fellow inmates. I was in jail under extremely dehumanizing conditions. We slept, bathed, ate and defecated in the same confinement with uncertainty of any reprieve. The prison cell was extremely dirty and unkempt. I suffered severe mental torture especially since I was underage at the time of confinement. 13. The other persons arrested on record were since released from detention between 2005 and 2006 respectively without trial as they had the means or connections to effect their release. 14. In 2012, the visiting Chief Judge of Akwa Ibom State Hon. Justice Idongesit Ntem Isua ordered my release from detention after stating that my continued 14

20 detention was both unconstitutional and unconscionable. The malicious collusion of the police officers and prison officials to keep me in indefinite incarceration can also be inferred in her statement when she said my (case file) was forwarded to the ministry of justice, the DPP says they cannot trace. The certificate of discharge from the Eket Prisons is marked Exhibit BN I am now an orphan, my parents are dead. My mother reportedly died as a result of the heartbreak and trauma from my being in unlawful detention and I had to wait for one year to know about her death. 17. I have suffered psychological trauma and with the result that an intergral part of my youthful life is wasted. Furthering my education or learning a trade after the unlawful incarceration is a step price that comes with my innocence. Having chronicled the reliefs sought by the respondent, the grounds for such reliefs and the facts relied upon, same reveals the followings: (a) That the respondent and two others were arrested and detained in 2004 based on criminal allegations. 15

21 (b) The respondent and the two other suspects were arraigned before the Chief Magistrate Court, Nsit Ubium L.G.A. on charge NO. MNU/11C/2004. (c) Consequent to the said arraignment, they were remanded in Eket prison upon judicial orders but between , the other two suspects Donald Ekong Frank and Obioma Benjamin were released. (d) While the impecuniousness of the respondent account for his inability to secure the services of counsel, the negligence and carelessness of prosecution led to the missing of the relevant cases file. (e) The combination of (d) above account for the respondent s prolonged detention. It has since been established by plethora of judicial authorities 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. A careful perusal of the respondent s claim before the trial Court shows that both the arrest and the detention was rooted on the appellants 16

22 lackadaisical attitude in missing the relevant case file. Facts they say, are the spring board of law. It is the facts of the case that determine the appropriate remedy. In the instant case, the unenthusiastic interest of the appellant to diligently prosecute the respondent being the basis of this action now on appeal, the respondent s reliefs lie in tort of negligence. It is settled that reliefs which are tortuous in nature cannot be sought pursuant to the fundamental right (Enforcement procedure) Rules, even if there exists some fundamental rights infringement or violation. Such reliefs can only be claimed strictly by following the common law procedure by issuance of a Writ of summons and filing pleadings. See NWANWUNA V NWAEBILI (supra). Also in ABDULHAMID V AKAR (supra), PER PATS ACHOLONU, JSC at page 147 paras C F: I must state that it is becoming fashionable nowadays for litigants to institute an action by way of asking for relief for infraction of their constitutional rights in a matter where the facts reveal that an action should conceivably lie in tort 17

23 or contract. It is difficult to say whether recourse to this inelegant procedure is borne out of the ignorance of counsel or mistake. Whichever is the case, it is important to state and emphasise that in a case of the nature before us, counsel should have studied the facts of the case very well. The respondent was clearly wrong to have commenced the action pursuant to fundamental rights (Enforcement procedure) Rules. Where a law provides that certain proceedings in respect of a particular cause of action shall be commenced by one method, a litigant will be wrong to commence such proceedings by another method. See OBAJIMI V AG WESTERN NIGERIA (1967) 1 ALL NLR 31. The next germane issue is that enforcement of fundamental right of the respondent being an auxiliary claim cannot activate the competence of the trial Court. I have held that the claim of the respondent lie in tort and thus whatever claim the respondent may have respecting the infraction of his fundamental rights, such claim(s) may at best be auxiliary while the principal claim was in tort. Where the main or principal claim is not for 18

24 enforcement or securing the enforcement of fundamental rights, the jurisdiction of the Court cannot be properly exercised. See TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (pt. 117) 517 UNIVERSITY OF ILORIN V OLUWADARE (2006) 6 7 SC 154, GAFAR V THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) 1 2 SC 154 at 209 and AMALE V SOKOTO LOCAL GOVERNMENT & ORS (Supra). In conclusion, the appeal succeeds as the trial Court lacks the requisite competence and jurisdiction to hear and determine the respondent s claim under the Fundamental Rights (Enforcement procedure) Rules. The entire proceedings in suit NO. HU/502/2013 is accordingly struck out and the judgment of the trial Court delivered on 13th November, 2014 by Hon. Justice Ekaette F. F. Obot is hereby set aside. There shall be no order as to costs. CROSS APPEAL JOSEPH KOFFI UDOH - CROSS APPELLANT AND 1. ATTORNEY GENERAL OF AKWA IBOM STATE CROSS RESPONDENTS 2. COMMISSIONER OF POLICE, AKWA IBOM STATE 19

25 The Respondents by a Notice of cross-appeal filed on 22/5/2018 cross-appealed against the judgment of Hon. Justice Ekaette F. F. Obot delivered on 13th November, 2014 setting out two grounds of appeal. Distilled from the said two grounds of cross-appeal, learned counsel for the cross-appellant, Ben Ndede, Esq., formulated two issues for the determination of the cross-appeal as follows:- 1. Where a trial Court holds applicant as entitled to all the reliefs sought, whether the Court not granting a significant relief may result in travesty of justice? 2. Where damages awarded in this case of unlawful detention is deemed as insufficient in quantum, would the appellate Court find deterring circumstances to interfere pursuant to S. 35 (6) of the 1999 Constitution (as amended). Learned counsel for the appellants/cross-respondents, Joseph D. Umoren did not formulate any issue for the determination of the cross appeal but rather adopted the two issues in the main appeal including 20

26 the arguments in support thereof. He in addition, challenged the competence of the grounds of cross appeal incorporating the argument in the cross-respondents brief of argument. On 18/10/2018, the cross appellant filed a cross-appellant s reply brief which was deemed as properly filed and served on 18/11/2018. On issue one, cross-appellant contended that inspite of the trial judge s condemnation to wit, that, no decent society should allow such flagrant abuse of the rights of its citizens and more so in a nascent democracy as ours, yet he failed to grant exemplary damages sought in the form publishing an apology. It was thus submitted that when a violated citizen finds justice, the Court is bound to redress in a manner that will restore the offended in the same position as he would have been if he had not sustain the wrong. He referred to SOETAN & ANOR V OGUNWO (1975) ALL N.L.R 359 at On issue two, cross-appellant contended that for a victim of fundamental right violation who lost his entire chance of being in school and been in custody for almost a decade, 21

27 the compensation or damage of Four Million and Fifty Thousand Naira (N4,050,000.00) is unjust and ridiculously low. It was submitted that for an award of damages to compensate the victims of human rights violation, it must reflect the economic reality in the country relying on Section 35(6) of the 1999 Constitution and the cases DILLY V I.G.P & ORS (2016) LPELR and ONOGORUWA V I.G.P. (1993) 5 NWLR (pt 193) 593. On the part of the cross-respondents, it was reiterated that since the trial Court had no jurisdiction to hear the respondent/cross-appellant s action, the complaint of not granting all the reliefs sought does not arise at all. And that when a Court conducts proceedings in which it has no jurisdiction over the cause of action, the judgment given at the end of such proceedings has no legal consequence. He referred to ADESIGBIN V THE MILITARY GOVERNOR OF LAGOS STATE (2017)10 NWLR (pt 1442) 447. I have stated that the cross-respondents have challenged the competence of the grounds of cross-appeal as follows:- 22

28 1. That the grounds of cross-appeal did not arise from the ratio decidendi or from the judgment of the Court. 2. The grounds of cross-appeal is made up of mixed law and facts in which leave of Court ought to be sought and obtained. 3. The issues for determination in the crossappellant s brief are not tied to any grounds of the cross-appeal. Arguing the preliminary objection, learned counsel for the cross-respondents submitted that a competent ground of appeal must arise from the decision of the trial Court but none of the grounds of cross-appeal emanate from the decision of the trial Court. He referred to the case of MINISTRY OF DEFENCE V IYEN (2014) 10 NWLR (pt 1416) 636 at 638 to the effect that the only way an appellant or cross-appellant may successfully complain against the decision of a trial Court is filing a ground of appeal pointing out defect in the judgment appeal against. It was the contention of the cross-respondents that questioning the decision of the trial Court for not granting all the reliefs sought as well as the quantum of damages awarded is a question of mixed law and facts. 23

29 Thus, it was submitted that the failure of the cross appellant to seek the leave of Court robs this Court of the jurisdiction to consider and pronounce on those grounds as they are deemed incompetent. He referred to Section 233 (2) of the 1999 Constitution. Learned counsel finally submitted that an issue formulated must not only relate to the ground or grounds of appeal but must fall within the existing grounds of appeal challenging the correctness of the judgment appealed against. And that ground 1 and 2 of the grounds of cross-appeal having not tied to any issue for determination, the entire cross-appeal is grossly incompetent. He referred to EZE V I.G.P (2017)4 NWLR (pt. 1554)44 at 53. In response to the preliminary objection, learned counsel for the cross-appellant contended that the grounds of crossappeal are rooted in the decision of the trial Court. He submitted that the failure to demonstrate the nature of the gerunds by the cross-respondents but rather heaps the needless burden on this Court renders the objection untenable. On the requirement of leave as alluded to by the crossrespondents, learned counsel 24

30 referred to Section 241, (1) (a) of the 1999 Constitution in submitting that the cross-appellant does not require any leave to appeal against a final decision of the trial Court. He referred to MUAZU V BANI MUSA HOLDINGS LTD (2010) LPELR 4570 and F.H.A. V KALEJAIYE (2010) IG NWLR (pt 1226) 147. As regards relating the grounds with issues distilled therefrom, learned counsel contended that the two issues are directly rooted in the grounds and that it behoove on the cross-respondents to show the disconnection between the issues raised and the grounds of cross appeal. RESOLUTION It is normal to first consider the potency of the preliminary objection before proceeding to consider the merit of the cross-appeal. The preliminary objection is premised on the competence of the grounds of cross-appeal. A challenge to the competence of a ground of appeal or cross-appeal as the case may be, is a fundamental point of law. The reason is that if the particular ground of appeal being attacked is found to be incompetent, then the Court is robed of the competence to entertain such ground of appeal. 25

31 The necessary consequence is that the particular grounds is to be struck out. See F.B.N. PLC V AKAPARA BONG COMMUNITY BANK LTD (2006)1 NLR (pt 962) 438 and OKAFOR V INEC (2010) 3, NWLR (pt. 1180)1. Also in INYANG V EBONG (2002) FLWR (pt 125) 703 at 734, it was held that a notice of appeal is a very important document because it is the foundation of the appeal and if it is defective the Court of appeal has inherent power to strike it out on the ground that it is incompetent. I have already set out the grounds upon which the crossrespondents based their objection and it is perhaps desirable to also reproduce the grounds of the cross-appeal for thorough understanding. The said two grounds of cross appeal, inclusive of their particulars are reproduced hereunder as follows:- GROUND ONE The Court omitted to award the relief of public apology sought by the cross-appellant. PARTICULARS: Contrary to Section 35(6) of the 1999 Constitution as amended, the learned trial judge neglected or omitted making the order for published public apology even though Joseph Koffi expressly sought for it. 26

32 GROUND TWO The award of only N4 Million (Four Million Naira) damages though discretionary was not commensurate with the wrong suffered in 8 years of trauma, psychological torture and loss of youthful prime while being incarcerated. PARTICULARS Against the intendment of adequate compensation in Section 35 (6) of the 1999 Constitution as amended, the learned trial judge neglected or omitted to order sufficient and accommodating relief sought by Joseph Koffi Udoh. The first ground of the objection is that the grounds of the cross-appeal do not arise from the judgment of the trial Court. Grounds of appeal must be based or predicated on the ratio of the judgment of the Court appealed against which means that an obiter dicta in a judgment of the Court cannot be subject of appeal. The ratio decidendi of the case is however not determined from isolated dictum in the judgment. It is determined based upon considerations of issues in the dispute between the parties vis a vis the facts pleaded and found in support of the contention of the issues. Hence, every judgment ought to be read as applicable to the 27