AIGBOJE AIG-IMOUKHUEDE VS DR PATRICK IFEANYI UBAH & ORS

CORAM

PARTIES

AIGBOJE AIG-IMOUKHUEDE APPELLANTS

DR PATRICK IFEANYI UBAH

AREA(S) OF LAW

SUMMARY OF FACTS

SUMMARY OF FACTS
ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41
The 5th Respondent obtained a loan facility in the name of his company Coscharis Motors Limited from Access Bank so as to enable him and the 1st & 2nd Respondents finance the business of importation of Premium Motor Spirit (PMS) into Nigeria for profit sharing under the Petroleum Support Fund Scheme. After payment for the products, the 5th Respondent discovered that the 1st & 2nd Respondents fraudulently brought the said products into Nigeria and diverted them to their personal use. The 5th Respondent laid the criminal complaint of diversion of proceeds of sale, spurious subsidy claims and money laundering against the 1st and the 2nd Respondents with the Police (the 3rd and the 4th Respondents) and the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers which was headed by the Appellant who was at that material time the Managing Director of the Access bank. The 1st and the 2nd Respondents had instituted a fundamental rights action against the Appellant and the 3rd and 4th Respondents at the Federal High Court, Lagos praying the trial Court to nullify and/or set aside the incriminating report of the presidential committee and the Police Interim Investigation Reports on the grounds that the purpose of the said reports were to damage the Applicants’ reputation and business. The trial Court entered judgment in favour of the 1st & 2nd Respondents. Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal.

HELD

ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41

ISSUES

ISSUE: ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41 Was the Learned Trial Judge right in (a) directing a consolidated hearing of the Appellant’s Service Preliminary Objection and the substantive Suit; and (b) holding that the Appellant was served howsoever with the Applicants’ originating processes? Was the Learned Trial Judge right in finding the Appellant liable to the Applicants howsoever in this matter? In other words, in the context of the Applicants’ claims and reliefs, was the Suit maintainable and did it disclose any cause of action howsoever against the Appellant? Was the Applicants’ Suit, in any event, not premature, in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) considering the fact that (a) charging the Applicants for a criminal offence is a condition precedent to the activation of their right under and pursuant to this Section; and (b) the Applicants have not been charged for any criminal offence at any time material to this Suit and did not claim at all to have been so charged? Was the lower Court right in not addressing, in the Court’s Judgment, this Issue which was raised and fully adumbrated upon both in the Appellant’s Substantive PO Written Address and in his Substantive Suit Written Address? As a corollary to Issue III hereof, upon a complete and careful review of the Applicants’ claims and reliefs as contained in their Originating Motion, was the Learned Trial Judge in any event right and/or justified howsoever in holding that the Applicants’ fundamental rights that are guaranteed under Section 36(5) of the 1999 Constitution were infringed howsoever and in particular, in the terms of their said claims and reliefs? Upon a consideration of all the preceding Issues and as it relates specifically to the Appellant, was the Learned Trial Judge justified howsoever in awarding “compensatory damages in the sum of l0 Million Naira to be paid by the Respondents severally and jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi offices of the 2nd Respondent from the 9th to the 19th of October, 2012”?

RATIONES DECIDENDI

ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41

SERVICE OF PROCESS – SERVICE OF COURT PROCESS IS THE CONDITIONS PRECEDENT TO THE ASSUMPTION OF JURISDICTION BY A TRIAL COURT
“It is not in doubt that service of process is one of the conditions precedent to the assumption of jurisdiction by a trial court. If there was no service or if the service was defective, the court would lack the jurisdiction and competence to entertain the suit and would have to set aside the improper service and order fresh service on the Respondent. In the case of Oloba v. Akerefu (1988) 3 NWLR (Pt. 84) 508”

POWER OF APPELLATE COURT TO CONDUCT TRIAL- INSTANCES WHERE THE COURT OF APPEAL CAN EXERCISE ITS POWER TO CONDUCT TRIAL AS IF IT IS A TRIAL COURT

“In the case of Ezeiawe v. Nwawulu (2010) 4 NWLR (PL 1183) 159 the SC held that for Section 15 of the Court of Appeal Act to apply, the following conditions must exist:
(a)That the High Court or trial court had the legal power to adjudicate in the matter before the appellate court entertained it;
(b)That the real issue raised by the claim of the appellant at the High Court or trial court must be capable of being distilled from the grounds of appeal;
(c)That all necessary materials must be available to the court for consideration;
(d)That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and
(e)That the injustice or hardship that will follow if the case is remitted to the court below must clearly manifest.
See also Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 565; Amaechi v. I.N.E.C. (2008) 5 NWLR (PL 1080) 227; Inakoiu v. Adeleke (2007) 4 NWLR (PL1025P 423; Agbakogbo v. I.N.E.C. (2008) 18 NWLR (PL 1119) 489.”

INTERPRETATION OF STATUTE -ALL LAWS MUST BE INTERPRETED IN CONFORMITY WITH THE CONSTITUTION

“All other laws must align with and be interpreted in the context of and in conformity with the Constitution. Tobi JSC in Global Excellence Communications Limited v Duke (supra) @ 47- 48 H-C.”

INTERPRETATION OF THE CONSTITUTION – THE LIBERALITY OF THE COURT IN INTERPRETING THE CONSTITUTION OR FUNDAMENTAL RIGHTS DOES NOT EXTEND TO CREATING NON-EXISTING RIGHTS

“A liberal approach be adopted when interpreting the constitution, especially the fundamental rights provisions do not enjoin the courts to create rights where there are none.” PER IYIZOBA JCA RELIEFS IN FUNDAMENTAL RIGHT ACTIONS- THE COURT SHOULD LOOK AT THE FACTS IN THE GROUNDS AND AFFIDAVIT IN CONSIDERING WHETHER A RELIEF FALLS WITHIN THE FUNDAMENTAL RIGHTS PROVISIONS
“It is inevitable that in considering whether the relief sought falls within the Fundamental Rights Provisions, the courts are bound to look at the facts in the grounds and the affidavit. I venture to add that it is most unlikely that the facts as shown in the grounds and affidavit will turn a relief which is outside the Provisions to one within the provisions. Sometimes, the determining factor is how the relief is framed or formulated. The point I am trying to make is that in some cases, the facts may disclose a breach of the applicant’s fundamental rights but the reliefs may be couched in such a way as to remove the case from the purview of the Provisions. So at the end of the day what matters really are the reliefs claimed.” PER IYIZOBA JCA CLAIMS UNDER FUNDAMENTAL RIGHT ACTIONS – COURTS SHOULD LOOK AT THE PRINCIPAL RELIEF TO DETERMINE WHETHER A CLAIM FALL UNDER FUNDAMENTAL RIGHTS
“For a claim to qualify as falling under fundamental rights, the principal relief sought must be identified and must be for the enforcement of the fundamental right of the applicant.” PER IYIZOBA JCA PROVISIONS OF AN ENACTMENT – THE COURT CAN RESORT TO THE PREAMBLE OF AN ENACTMENT AS AN AID TO CONSTRUING THE PROVISIONS OF AN ENACTMENT
“In construing the provisions of an enactment, such as the 2009 Rules, a subsidiary legislation, the preamble to the enactment, though not a part of the enactment, can be resorted to as an aid to the construction of the enactment where there is some difficulty in arriving at the meaning of the words used in the enactment. See Osawe and Ors. v. Registrar, Trade Unions (1985) 1N.W.LR. (Pt. 4) 755 at 769.”

PRELIMINARY OBJECTION IN FUNDAMENTAL RIGHT PROCEEDINGS – DUTY OF THE COURT TO HEAR THE NOTICE OF PRELIMINARY OBJECTION ALONGSIDE THE SUBSTANTIVE MATTER BECAUSE OF THE EXTREME URGENCY OF FUNDAMENTAL RIGHT PROCEEDINGS

“It is in light of the urgency of human rights cases that the 2009 Rules has, by Order VII thereof, rolled together in one package any notice of preliminary objection including that on jurisdiction and/or for the setting aside of an originating application to be heard together with the substantive action and determined thereat. The procedure under Order VIII of the 2009 Rules is to fast track proceedings for the purpose of saving precious public time (a scarce resource) and costs and tension that emerge from protracted litigation. See by analogy the cases Senate President v. Nzeribe (2004) 8NWLR (pt. 878) 251 at 274, Amadi v. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 at 100 and Olorunkunle v Adigun (2012) 6NWLR (pt.1297) 407 a, 426 per Okoro, J.C.A., (now J.S.C.)”

“CHARGED” – MEANING OF THE PHRASE “CHARGED”

“The phrase “charged” used in section 36 (5) of the 1999 Constitution refers to arraignment of an accused before a court of law or a tribunal having judicial powers to convict and punish the accused, if found guilty at the end of the day. It does not extend to administrative or ministerial investigative bodies such as the bodies complained of on the appeal. A charge is a process by which all the ingredients or elements of an allegation are brought to the notice of the accused. See Okereke v. James ,2012,16 NWLR (p, 1326, 339 at 351 where the Supreme Court held in the lead judgment of Rhodes-Vivour, J.S.C., that the word “charge” appears only in criminal trial.”

CASES CITED

STATUTES REFERRED TO

ALASAN BABATUNDE, AJAGUNNA II OLUKARE OF IKARE VS GOVERNOR, WESTERN REGION 1960 FSC 207/1959 [1960] NSCC 41|Constitution of the Federal Republic of Nigeria,1999|Court of Appeal Act Fundamental Right Enforcement Procedure Rules, 2009|

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