ADAMAWA STATE GOVERNMENT & ORS VS CHIEF GODWIN OMENAKA & ANOR
April 4, 2025TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED & ORS VS NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR
April 4, 2025Legalpedia Citation: (2019) Legalpedia (CA) 10111
In the Court of Appeal
HOLDEN AT CALABAR
Sun Jun 30, 2019
Suit Number: CA/C/106/2011
CORAM
PARTIES
1. BENJAMIN MONDAY ETITO2. UWEM OKON MATHEW3. KINGSLEY IKOT TOMMY4. HON. (CHIEF) SAMMY UDOJO5. PRECIOUS EMMANUEL ETUKUDO (SUING BY HIS NEXT FRIEND, NSE DAMISON NSIMA) APPELLANTS
1. KCA DEUTAG NIGERIA LIMITED2. FRONTIER OIL LIMITED AND G.O.G.E.3. NIGERIAN ARMY4. COMMISSIONER OF POLICE AKWA IBOM STATE COMMAND RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellants as Applicants in the Federal High Court Uyo, brought a fundamental rights application against the Respondents seeking the following reliefs, ‘a declaration that the 1st, 2nd, and 3rd Respondents in beating and torturing the late Emmanuel Etukudo, resulting in his death, amounts to an infringement of the fundamental right to life of the deceased, guaranteed in section 33 of the Constitution of the Federal Republic of Nigeria 1999; a declaration that the acts of the Respondents in beating up, torturing, arresting and detaining the 1st to 4th Applicants at the 2nd Respondent’s Military post, Divisional Police Station, Eket and the State Police Headquarters, Uyo amounts to infringement of the Fundamental rights of the 1st to 4th Applicants to dignity of human person guaranteed in section 34 and 35 of the Constitution of the Federal Republic of Nigeria; and One Hundred Million naira (100,000,000.00), being general damages against the Respondents jointly and severally for violating the aforesaid fundamental right of the Applicants.’ The Appellants alleged that their rights were infringed upon by the Respondents through their various acts, which included beating, torture and death, so they initiated a fundamental rights proceeding, which was opposed with counter affidavit filed by some of the Respondents. The court over ruled a preliminary objection on jurisdiction earlier on but upon a careful consideration of the affidavits in support of the application and those opposing the application, the court below struck out the application on the ground that it had no jurisdiction because of the allegations of crimes were outside its jurisdiction and therefore it cannot determine same and consequently struck out the application. Dissatisfied with the decision, the Appellant brought this appeal.
HELD
Appeal Dismissed.
ISSUES
Whether the Federal High Court has the jurisdiction to decide Appellants’ suit as a fundamental Human Rights enforcement suit for the reason that the Nigerian Army is a Party? Whether the Federal High Court could have legally determined the alleged infringement of the Fundamental Rights of the Appellants in a claim for the criminal offences of beating, torture and murder without firstly determining whether or not the Acts/Offences were actually committed by the Respondents? Whether a necessary examination of sections of the Criminal Code relating to alleged offences (beating, torture and death) in order to decide a fundamental Rights Enforcement suit, is beyond the limited jurisdiction of the Federal High Court?
RATIONES DECIDENDI
PRELIMINARY OBJECTION – DUTY OF A RESPONDENT SEEKING TO RAISE A PRELIMINARY OBJECTION TO THE HEARING OF AN APPEAL
“It is settled that a Respondent seeking to raise a preliminary objection to the hearing of the appeal should take the appropriate step as provided by the rules of court. See Order 10 Rule 1 of the 2016 Rules of the Court which says:
‘A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and file such notice together with twenty copies thereof with the registry within the same time.’
PRELIMINARY OBJECTION – WHETHER PRELIMINARY OBJECTION CAN BE RAISED ORALLY FOR THE FIRST TIME ON APPEAL
“This position is informed by the fundamental nature of jurisdiction which can be raised orally and for the first time on appeal; see Salisu & Anor. Vs. Mobolaji & Ors. (2013) LPELR- 2019 (SC) wherein the apex court held as follows:
‘It is not out of place to stress that the issue of jurisdiction is a threshold one which this Court, in Elugbe vs. Omokhafe (2004) 11-12 SC 60, has held must not be treated lightly. The point has repeatedly been made that no matter how well proceedings were conducted by a Court the proceedings would come to naught and remain a nullity if same were embarked upon without jurisdiction. This explains the principle of law which allows the issue of jurisdiction to be raised orally and even for the first time in this Court. See Petrojessica Enterprises Ltd. vs. Leventis Technical Co. Ltd. (1992) 6 SC (part 11) 1; Katto vs. CBN (1991) 11-12 SC 176; Oloriode vs. Oyebi (1984) 5 SC 1; Ezomo vs. Oyakhire (1985) 2 SC 260 at 282 and Lado & 43 others vs. CPC & 53 Ors (2011) 12 SC (part 111) 113.”
JURISDICTION OF COURT – STATUS OF PROCEEDINGS CONDUCTED WITHOUT JURISDICTION
“As contended by the 3rd Respondent and on the authority of Hassan Vs. Aliyu (2010) 17 NWLR (PT. 1223) at 591, the apex court reemphasized the fundamental nature of jurisdiction to a court and where it is vitiated by any of the factor necessary to bestow jurisdiction, then it also lacks the competence to hear and determine the claim as all proceedings conducted without jurisdiction amount to a nullity.”
SERVICE OF ORIGINATING PROCESSES – EFFECT OF SERVICE OF ORIGINATING PROCESSES
“Service of originating processes on a party is a necessary and fundamental step as settled by the apex court in Ariyefa Nwosu Vs. Ibejiuba Nwosu (2000) 4 NWLR (PT. 653) 359 thus:
‘I agree with the learned counsel for the Appellant that generally the service of process is sine qua non for an effective adjudication of a case. The service on the defendant is to enable him appear to defend the relief being sought against him. Personal appearance by a party or his counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This accords with the principles of justice and fair hearing enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
NON-SERVICE OF COURT PROCESSES – EFFECT OF NON- SERVICE OF COURT PROCESS WHERE SERVICE IS REQUIRED
“The effect of non-service is obvious and the court cannot take any step in the matter as it concerns that party not served, see Matahor & Anor. Vs. Ibarakunye (2017) LPELR-43346(CA), it held:
‘It should be borne in mind always that the effect of non-service, where service is required, is that the Court is deprived or divested of its competence and jurisdiction to entertain the cause or matter. See Mohammed Mari-Kida vs. A.D. Ogunmola (2006) 13 NWLR (Pt.997) 377 at 396, per Katsina-Alu, JSC (as he then was) and United Bank for Africa Plc vs. Magama (Nig) Ltd. & Anor. (2013) 16 NWLR (Pt.1379) 36 at 55, per Iyizoba, JCA.”
MISCARRIAGE OF JUSTICE – WHETHER THE NEED TO PROVE MISCARRIAGE OF JUSTICE IS APPLICABLE IN CASES WHERE SERVICE OF COURT PROCESS WAS NOT EFFECTED
“Furthermore, the need to establish or prove miscarriage of justice is inapplicable in cases where service was not affected because failure to serve according to law breaches the right to fair hearing of a party and that is more fundamental than the need to establish miscarriage of justice, that alone is a gargantuan miscarriage of justice.”
SERVICE OF ORIGINATING PROCESSES – ESSENCE OF SERVICE OF ORIGINATING PROCESSES
“The essence of service is to enable the party appear to defend itself against the reliefs sought against it and service of originating processes is a condition precedent, see Skenconsult (Nig.) Ltd. Vs. Ukey (1981) 1 SC 6 at 26.”
DENIAL OF FAIR HEARING – STATUS OF PROCEEDINGS WHERE A PARTY IS DENIED HEARING
“Proceeding when one of the parties was denied a hearing will amount to a second round of injustice, the outcome of the decision notwithstanding, the proceedings are a nullity. When fair hearing is breached the entire proceedings are set aside for being void as the court cannot do a surgical operation.”
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules, 2016|
