ADEMOK CONTINENTAL LTD & ANOR V.   OGUN STATE GOVERNMENT

ADEMOK CONTINENTAL LTD & ANOR V. OGUN STATE GOVERNMENT


COURT OF APPEAL

IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON THURSDAY, 6TH JULY, 2022


  APPEAL NO: CA/IB/344/2020

CITATION:
Before Their Lordships

JIMI OLUKAYODE BADA,

JCA UGOCHUKWU ANTHONY OGAKWU, JCA
ABBA BELLO MOHAMMED, JCA

ADEMOK CONTINENTAL LTD & ANOR

(APPELLANT)

V.

OGUN STATE GOVERNMENT

(RESPONDENT)


LEAD JUDGEMENT DELIVERED BY UGOCHUKWU, J.C.A. 


 The Respondent herein was the Applicant at the Federal High Court, Abeokuta Division in an application for the enforcement of fundamental rights. The facts of the matter as presented by the Respondent in the processes filed at the lower Court disclose that on or about the 25th day of January, 2019, the officers of the Appellants herein, Respondents at the lower Court, carried out an anti-smuggling operation at the Owode Area of Ogun State. In the course of the operation, the officers allegedly ransacked the shops of the traders in the area, including that of the Respondent’s deceased sister, Serifat Ogunsina, who was alleged to have been shot dead in the course of the operation and her corpse was taken to the State Hospital, Ota, by Police Officers.

​The case of the Appellants, as Respondents at the lower Court was a denial of the allegations as to what allegedly transpired on 25th January, 2019. They however asserted that they carried out an operation on 21st January, 2019 at the Celestial Church of Christ, Owode, in order to seize smuggled foreign parboiled rice which intelligence reports disclosed were loaded in about 50 vehicles coming to Owode from Ado Odo Creek. It is their case that upon arrival at Celestial Church of Christ, Owode, some hoodlums who were armed with dangerous weapons attacked them and that in consequence, their officers fired shots in the air to disperse the crowd of attackers. They maintain that nobody was injured or killed as a result of the shots that were fired in the air.

It is premised on these set of facts that the Respondent instituted proceedings before the lower Court in SUIT NO. FHC/AB/FHR/2/2020: MRS. MUTIAT OGUNSINA (Suing as Next of Kin on behalf of Serifat Ogunsina, The Deceased) vs. NIGERIA CUSTOMS SERVICE BOARD and ORS. The Respondent claimed the following reliefs:

(a) A DECLARATION that the arrest, torture and extra-judicial killing of the Applicant’s deceased sister (late Serifat Ogunsina) by the Customs Officers attached to Idiroko Area Command of Ogun State agents of the Respondents on the 25th of January, 2019 at Owode Area of Ogun State without any Court order is illegal, unlawful, unconstitutional and a gross violation of the Applicant’s deceased brother [sic] constitutional right to life, dignity of human person and fair hearing as enshrined under Section 33, 34 and 36 of the 1999 Constitution of the Federal Republic of Nigeria and the African Charter and the Universal Declaration of Human Rights.

(b) AN ORDER DIRECTING the IMMEDIATE PROSECUTION of the culpable Customs officers attached to the Idiroko Area Command for the unlawful and extra-judicial killing of the Applicant’s deceased sister (late Serifat Ogunsina) on the 25th of January, 2019 at Owode Area of Ogun State without any order of Court.

(c) AN ORDER compelling the Respondents to jointly and severally issue a Public Apology in three (3) widely circulated Newspaper publications and to pay the sum of N500, 000,000.00 (Five Hundred Million Naira) only as GENERAL and EXEMPLARY DAMAGES in favour of the Applicant and his family for the unlawful and extra-judicial killing of the Applicant’s deceased sister (late Serifat Ogunsina) without any order of the Court.

(d) AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents jointly and severally whether by themselves, their agents, officers, officials, privies, servants or anyone else claiming or deriving authority from them from harassing, intimidating, inviting, arresting, detaining or disturbing the Applicant in connection with the facts of this case.

The application was heard on the affidavit evidence and other processes filed and exchanged by the parties. The lower Court in its judgment, which was delivered on 16th July, 2020, struck out the name of the 2nd Appellant from the action and entered judgment against the 1st Appellant only in terms of reliefs (a) and (d) and further awarded the sum of N40million as damages against the 1st Appellant. The Appellants were dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 22nd July, 2020. The judgment of the lower Court is at pages 75-108 of the Records, while the Notice of Appeal is at pages 109-110A of the Records.

In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 13th October, 2020, but deemed as properly transmitted on 9th November, 2021. The parties thereafter filed and exchanged briefs of argument. The Appellants filed their brief of argument on 24th November, 2020 and their Reply Brief on 30th June, 2021. On her part, the Respondent filed her brief of argument on 16th June, 2021. All the briefs were deemed as properly filed on 9th November 2021. The Respondents also filed a Notice of Preliminary Objection which was argued in the Respondent’s brief of argument. At the hearing of the appeal on 25th November, 2021, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the matter.

THE PRELIMINARY OBJECTION

The logical starting point will be the Respondent’s preliminary objection which is threshold in nature and seeks to scuttle in limine the hearing and determination of the appeal on the merits. The preliminary objection is predicated on the following grounds:

“1. That the appeal herein is grossly incompetent and improperly constituted.

2. That the Appellants Notice of Appeal was NOT served on the Respondent herein.

3. That the non-service or failure to serve the Appellants Notice of Appeal on the Respondent or her counsel robs this Court of jurisdiction to hear this instant appeal

4. That the Appellants’ one (1) ground of appeal as contained in the Notice of Appeal is one of mixed law and facts wherein leave of Court was not sought and obtained by the Appellants.

5. The one (1) ground Notice of Appeal is solely grounded in mixed law and fact and clearly incompetent to enable this Court properly exercise it [sic] jurisdiction to hear this appeal.

6. The jurisdiction of this Court has NOT been properly activated by the Appellants.

7. It is in the interest of justice to dismiss and or strike out this instant appeal for being grossly incompetent.”

The Respondent submits that the Notice of Appeal is the originating process and spinal cord of an appeal vide ANI v. EFFIOK (2017) 8 NWLR (PT 1567) 281 at 301 and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of the Court to entertain the appeal. The affidavit of non-service of the Notice of Appeal deposed to by the bailiff of the lower Court was referred to and it was opined that even the attempted service was not made at the address for service of the Respondent’s counsel on record. The Court was accordingly urged to strike out the appeal since the Notice of Appeal was not served. It is the further contention of the Respondent that the Appellants’ sole ground of appeal was a ground of mixed law and fact which requires leave of Court, and that the Appellants having failed to seek and obtain leave of Court in respect of the said ground of appeal rendered the appeal incompetent. The case of FBN PLC v. A-G FEDERATION (2018) 7 NWLR (PT 1617) 121 at 151 was relied upon.

In replication, the Appellants submit that from the affidavit of non-service, it was clear that the Respondent’s counsel refused to accept service of the process and used abusive words on the bailiff. It was stated that by Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019, it sufficed in such circumstances if the person to be served is told the nature of the process. This, it was posited, was done, which made it possible for the Respondent’s counsel to later collect the necessary documents which enabled him file the Respondent’s brief and preliminary objection.

It was further submitted that the sole ground of appeal is a ground of law which challenges the availability of evidence on the basis of which the lower Court held that the allegations of the Respondent were proved beyond reasonable doubt. It was opined that though it is difficult to distinguish a ground of law from a ground of fact, but that the Appellants’ ground of appeal which complains about the absence of the required evidence as provided by law is a ground of law, not mixed law and fact as contended by the Respondent. The cases of IKENTA BEST (NIG) LTD v. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) [no page stated] or (2008) LPELR 1476, THE MINISTER OF PETROLEUM and MINERAL RESOURCES v. EXPO-SHIPPING LINE (NIG) LTD (2010) LPELR-3189 (SC) or (2010) 12 NWLR (PT 1208) 261 and UWAK v. EKPENYONG (2019) 7 NWLR (PT 1670) @ 67-84 were called in aid.

RESOLUTION OF THE PRELIMINARY OBJECTION

The Respondent’s preliminary objection is two-pronged. The first prong is on the consequences of non-service of the Notice of Appeal, while the second prong is on the sole ground of appeal being a ground of mixed law and fact, and the Appellants having failed to obtain leave of Court to appeal on the said ground of mixed law and fact. The parties have referred to the affidavit of non-service deposed to by the bailiff of the lower Court, with the Respondent contending that the attempt at service was not made at the Respondent’s address for service on record. For the Appellants, the stipulations of Order 6 Rule 26 of the Federal High Court (Civil Procedure) Rules, 2019 were relied upon to the effect that the nature of the process was made known to the Respondent, on account of which the Respondent filed her processes in respect of the appeal.

Firstly, from the processes filed by the Respondent at the lower Court, the address for service of the Respondent’s counsel included the addresses at Igando, Lagos State and Iperin-Agbara, Ogun State. (See pages 2, 6, 21, 50, 65-66 and 68-69 of the Records). From the affidavit of non-service at page 112 of the Records, the directions requested by the bailiff of the lower Court, were the directions to the Igando, Lagos State address. So it is not correct as contended by the Respondent that the attempt at service was not made at the address for service on record. Howbeit, the Notice of Appeal which the bailiff of the lower Court attempted to serve is at pages 109-110A of the Records. The Respondent’s address for service thereon (page 110 of the Records) is the Igando, Lagos State address. Accordingly, the bailiff of the lower Court was justified in attempting to effect service at the Igando, Lagos State address, being the address for service stated in the Notice of Appeal.

Even though the Notice of Appeal is filed at the Registry of the lower Court, the Respondent has rightly submitted that the Notice of Appeal is the originating process for an appeal. So it is the rules of procedure of this Court that we would turn to on the consequences of service vel non of the Notice of Appeal.

It is rudimentary law that there is no vested right in any course of procedure, a litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner. In this regard, the hornbook principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings, unless there is a provision to the contrary. See OWATA v. ANYIGOR (1993) LPELR (2842) 1 at 13, OMIRINDE v. FRN (2017) LPELR (44971) 1 at 39-40, IWUNZE v. FRN (2014) LPELR (22254) 1 at 14, NWORA v. NWABUEZE (2013) LPELR (20587) 1 at 18-19 and GBENEYEI v. ISIAYEI (2014) LPELR (23216) 1 at 20.

The attempt at service of the Notice of Appeal on the Respondent was made on 24th September, 2020. The applicable rules of procedure of this Court as at that date was the Court of Appeal Rules, 2016. At the date of hearing of this matter on 25th November, 2021, the applicable rules of procedure are the Court of Appeal Rules, 2021, which repealed the Court of Appeal Rules 2016, and which came into force on 1st November, 2021. Since there is no vested interest in the rules of procedure, it is the Court of Appeal Rules, 2021 that are regnant. Happily however, the relevant stipulations, whether in the 2016 Rules or the 2021 Rules, are the same.

Order 2 Rule 1 of the Court of Appeal Rules, 2021, requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.

The affidavit of non-service clearly establishes that the Notice of Appeal was not served on the Respondent. Being the originating process for the appeal, the law is settled beyond peradventure that it is fatal where the Notice of Appeal has not been served as the jurisdiction of the appellate Court is not activated in consequence. See ADEGBOLA v. OSIYI (2017) LPELR (42471) 1 at 14-15, HARRY v. MENAKAYA (2017) LPELR (42363) 1 at 38-39 and ODEY v. ALAGA (2021) LPELR (53408) 1 at 19-27 and 71-75. Since the Notice of Appeal was not served, the concomitance is that the first prong of the preliminary objection on non-service of the Notice of Appeal succeeds ex debito justitiae. The consequence of the non-service of the Notice of Appeal is that the jurisdiction of this Court to entertain the appeal has not been activated. The appeal is therefore incompetent and will have to be struck out for want of jurisdiction. See ODEY v. ALAGA (supra), BUNI v. OZOBO (2020) LPELR (52282) 1 at 25-40, APC v. OZOBO (2020) LPELR (52283) 1 at 10-24, NCSU v. EKASA (2021) LPELR (54752) 1 at 6-7 and ANWAKOBE v. ESUMEI (2018) LPELR (47255) 1 at 13-17.

Having held that the Court does not have the jurisdiction to entertain the appeal on account of non-service of the originating process, the Notice of Appeal, I ought to end this judgment at this stage, but being an intermediate appellate Court, I am enjoined by law to consider all the issues raised in the appeal. Accordingly, I will proceed to consider the second prong of the preliminary objection and thereafter segue to the merits of the appeal.

While the first prong of the preliminary objection deals with the threshold issue of service of the Notice of Appeal, this second prong of the preliminary objection challenges the competence of the Notice of Appeal filed by the Appellants. It is abecedarian law that a notice of appeal in the process of an appeal is a very important document, as it forms the foundation of the appeal. If it is defective, the appellate Court must strike it out on the ground that it is incompetent. The question of whether or not a proper notice of appeal has been filed is a question which touches on the jurisdiction of the appellate Court. If no proper notice of appeal has been filed, then there is no appeal for the Court to entertain. See OLANREWAJU v. BON LTD (1994) 8 NWLR (PT. 364) 622 and FIRST BANK v. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 49. Put differently, a competent notice of appeal is the foundation and substratum of every appeal. Any defects thereto will render the whole appeal incompetent and the appellate Court will lack the requisite jurisdiction to entertain the appeal. See UWAZURIKE v. A-G FEDERATION (2007) LPELR (3448) 1 at 14 and ADELEKAN v. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27.

The Respondent’s contention in this second prong of the objection is that the sole ground of appeal is a ground of mixed law and fact and that the Appellants require leave of Court to appeal on the said ground, which leave they neither sought for nor obtained. Now, a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party. See IDIKA v. ERISI (1988) 2 NWLR (PT 78) 503 at 578, AZAATSE v. ZEGEOR (1994) 5 NWLR (PT 342) 76 at 83 andAKPAN v. BOB (2010) 17 NWLR (PT 1223) 421 at 464.

The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO v. OSHATOBA (1996) LPELR (2156) 1 at 33, CHIEF OF STAFF v. IYEN (2005) 6 NWLR (PT 922) 496, ODUKWE v. ACHEBE (2008) 1 NWLR (PT 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION v. ONYEABOR (2011) LPELR (3563) 1 at 31.

The Appellants’ sole ground of appeal reads as follows:

GROUND OF APPEAL

The Court below erred in law when it held that the officers of the Respondent were responsible for the death of the sister of the Applicant, one Serifat Ogunsina on the 25th of January, 2019 when the Applicant did not place any cogent evidence before the Court in proof of that fact.

PARTICULARS OF ERROR

1. The case of the Applicant borders on the alleged breach of the fundamental right of her late sister Serifat Ogunsina allegedly tortured and killed by officers of the Respondent on the 25th of January, 2019. The lower Court failed to address its mind to the fact that the Applicant has the legal burden to place enough material before the Honourable Court in prove of the depositions in the affidavit in support of the application and thereby came to a wrong conclusion that the respondents are responsible for the death of the Applicant’s sister.

2. The lower Court erred in law when it failed to properly evaluate the evidence brought before it and thereby came to a wrong conclusion. ”

The gravamina of the Respondent’s contention is that the above ground is not a ground of law alone but a ground of mixed law and fact and therefore leave of Court was necessary to appeal on the said ground and that having failed to obtain leave of Court, the said ground was incompetent and liable to be struck out. The Appellants contend the contrary, asserting that the ground of appeal is one of law only. I will first ascertain the character of the ground of appeal, whether one of law or one of mixed law and fact, and thereafter determine, whichever it be, if in the diacritical circumstances of this matter, the Appellants require leave to appeal on the said ground.

​Now, it is often a very thin line that separates a ground of law only from a ground of mixed law and facts. Happily, the apex Court has laid down the marker on how to ascertain whether a ground of appeal is of law alone, of fact or mixed law and fact. In the words of Eso, JSC in OGBECHIE v. ONOCHIE (1986) LPELR (2278) 1 at 8:

“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 a question of law, or one that would require questioning the evaluation of facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”

Equally, in giving the classification of a ground of appeal in FIRST BANK OF NIGERIA PLC v. T. S. A. INDUSTRIES LTD (supra) at 55-56, Adekeye, JSC stated as follows:

“The important yardstick for the classification of a ground of appeal is not in form of the question it raises but for instance –

(a) Where the grounds of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.

(b) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.

(c) Where the question which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.

(d) Where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.

(e) Where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best, a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.

(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.

(g) A ground of appeal complaining of failure of the Court to discharge its duty of considering and pronouncing on the issues raised before it is a question of law.

(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.”

See also OLABOMI v. OYEWINLE (2013) LPELR (20969) 1 at 11-12, IKENTA BEST (NIG) LTD v. A-G RIVERS STATE (supra) and UWAK v. EKPENYONG (supra).

With this marker as the lodestar, I have closely examined the chafed sole ground of appeal and I am not in any doubt whatsoever that the complaint therein is on the evaluation of the affidavit evidence by the lower Court. Being a complaint on evaluation of evidence, it is a ground of mixed law and facts. See FIRST BANK OF NIGERIA PLC v. T. S. A. INDUSTRIES LTD (supra). But in the circumstances of this matter, do the Appellants need to obtain leave of Court to appeal on the said ground? It would not seem to be so as the appeal is against the final decision of the lower Court.

Section 241 (1) (a) of the 1999 Constitution (as amended) provides as follows:

“241 – (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.”

The decision subject of this appeal is the final decision of the Federal High Court, Abeokuta Division, sitting at first instance. By the constitutional provision, an appeal lies as of right against such a decision irrespective of whether the grounds of appeal are of law, mixed law and facts or indeed facts only. See OKOYEKWU v. OKOYE (2009) 6 NWLR (PT 1137) 350 at 381, OYEWINLE v. ARAGBIJI OF IRAGBIJI (2012) LPELR (9328) 1 at 28-31 and NUC v. ALLI (2013) LPELR (21444) 1 at 35-36. Indubitably, the ground of appeal is competent and leave of Court is not required for the Appellants to appeal on the said ground.

Having considered and dealt with the preliminary objection, I will now proceed to consider the appeal on the merits. I only wish to state that the manner in which the issues raised in the preliminary objection were resolved would impact on the final order to be made in this appeal, notwithstanding the manner in which the merits of the appeal is resolved.

THE APPEAL

The Appellants distilled a sole issue for determination, videlicet:

“Whether from the evidence before the Court, the Applicant proved his case to be entitled to the reliefs sought.”

The Respondent equally formulated a sole issue for determination, scilicet:

“Whether the learned trial judge was correct and rightly condemned the extra-judicial killing and brazen violation of the Respondent Deceased Sister’s right to life by the Appellants.”

From the sole ground of appeal, the issue crafted by the Appellants is idoneous; it is therefore on the basis of the said issue that I will consider the submissions of learned counsel and resolve this appeal.

ISSUE FOR DETERMINATION

Whether from the evidence before the Court, the Applicant proved his case to be entitled to the reliefs sought.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL

The Appellants submit that there is no convincing and/or credible evidence as required by law to entitle the Respondent to the relief she sought in the application. Sections 131 and 132 of the Evidence Act and the case of ADAKE v. AKUN (2003) LPELR-72 were referred to on the onus of proof. It was stated that the onus was on the Respondent to prove her allegation of arrest, torture and extra-judicial killing of her sister which allegations being criminal in nature were to be proved beyond reasonable doubt as required by Section 135 of the Evidence Act vide APC v. PDP (2015) 15 NWLR (PT 1481) at 66-67.

It was asserted that the onus was on the Respondent to prove the alleged infringement of fundamental rights, which she failed to do by her affidavit evidence. The cases of DIRECTOR OF STATE SECURITY SERVICES v. IBRAHIM (2016) LPELR-41618 (CA) and ATAKPA v. OBETOR (2015) 3 NWLR (PT 1447) 549 were relied upon. It was posited that torture and murder as alleged are criminal offences which ought to be reported to the Police for investigation and that Exhibits B and D attached to the Respondent’s Further Affidavit were not Police Report of Investigation and do not state the cause of death or persons responsible for the death.

It was conclusively submitted that the facts and materials before the Court do not establish the allegations of arrest, torture and extra-judicial killing of the deceased, such that the Respondent was not entitled to the relief she claimed. The case of CPC v. INEC (2012) 1 NWLR (PT 1280) 106 at 131 was called in aid.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL

The Respondent contends that the lower Court did a proper analysis of the affidavit and material evidence in arriving at the just determination of the case. It was opined that the lower Court rightly found that the Appellants approbated and reprobated by first stating that they were not at the area where the incident happened, only for them to again depose that they were in the area to seize foreign rice and had to shoot their way through when they were attacked by hoodlums, while denying that anyone died as a result of the shooting. Paragraphs 3 and 10-16 of the Appellants’ Counter-Affidavit were referred to. It was therefore maintained that the lower Court rightly held at page 102 of the records that the Appellants were liable for the killing of the deceased. Still in argument, it was submitted that the onus is on the person who has deprived another citizen of his life to show that the killing was justified or excused by law vide IGP v. IKPILA (2016) NWLR [no volume stated] (PT 1517) 236 at 286-287. The lower Court, it was contended, rightly held at page 104 of the Records that the affidavit evidence did not show that the killing of the deceased was in execution of an order of Court and that it was therefore illegal, unlawful and a violation of Section 33 (1) of the 1999 Constitution (as amended).

It was further submitted that in deserving cases of abuse of fundamental rights, that the attitude of the Courts is to award exemplary damages and that at page 107 of the Records, the lower Court followed the binding pronouncements of this Court in arriving at the amount it awarded as damages. The case of IGP v. IKPILA (supra) at 298 was cited in support. It was conclusively submitted that the reasoning and findings of the lower Court were not perverse and that the Appellants have not shown any cogent reason why this Court should interfere with the said findings and reasoning.

APPELLANTS’ REPLY ON LAW

The Appellants in their reply brief doubled down on their submissions that the Respondent did not prove the alleged arrest, torture and extra-judicial killing beyond reasonable doubt. The necessary elements for arrest, torture, extra-judicial killing, murder, unlawful homicide, manslaughter and how to prove them were set out in support of the contention that the allegations made by the Respondent were not proved beyond reasonable doubt. Section 36 (5) and (12) of the 1999 Constitution as amended, Section 4 of the Administration of Criminal Justice Act, Sections 315 to 325 of the Criminal Code of Ogun State and the cases of AFUAPE v. THE STATE (2020) 17 NWLR (PT 1754) at 381-424 and OLADIPO v. THE STATE (2020) 7 NWLR (PT 1723) at 238-258 were relied upon.

RESOLUTION OF THE APPEAL

Let me start by saying that the Appellants in paragraph 4.0 on page 3 of their reply brief rightly submitted that the decision of the lower Court did not turn on the allegations of arrest and torture. This being so, the fine legal points made by the Appellants on elements of arrest and torture are otiose. I restate that the quiddity of the complaint in the ground of appeal is on the evaluation of evidence and ascription of probative value thereto by the lower Court. Even though the lower Court awarded the sum of N40million as damages in favour of the Respondent, the Appellants have not challenged the award in any manner whatsoever in this appeal. So the very narrow prism in which this appeal has been ventilated is on evaluation of evidence. That is the Appellants’ grouch with the decision of the lower Court and that is what we are to resolve in this appeal, and no more. Therefore, the proper course to follow in resolving this matter will be to examine the evaluation of evidence by the lower Court relative to the ratio decidendi in the case.

The decision of the lower Court primarily turned on issue number four which it distilled at page 94 of the Records, namely:

“…Whether the killing of the applicant’s sister is illegal and/or constitutional having regards to Sections 33, 34, and 36 and [sic] of Constitution of Federal Republic of Nigeria 1999 (as amended)”

In resolving this issue, the lower Court found and held as follows at pages 104-105 of the Records:

“From the affidavits evidence before the Court, there was no evidence to show that the killing of the Applicant’s sister by the Respondents was in execution of the order of Court in Nigerian. [sic] What was in evidence was that the Late Serifat Ogunsina was in her shop at Owode on the fateful day doing her lawful normal business when the Respondent’s officers fired shot and the bullet subsequently hit and killed her. This being the case therefore, I agree with the submission of the learned Counsel for the Applicant that the killing of Serifat Ogunsina by the officers of the Respondents at Owode on 25th January, 2019 was illegal and unlawful as it was done in flagrant violation of Section 33 (1) of the Constitution of Federal Republic of Nigeria 1999 as amended I and [sic] so hold. This issue is also resolved in favour of the Applicant against the Respondents.”

Having so resolved this issue in favour of the Respondent, the lower Court held that compensation ought to be paid for the illegal and unlawful act that resulted in the violation of the right to life. It then made an award at page 108 of the records as follows:

“I am of the considered view that the sum of N40m will be adequate damages for breach of the right to her life.”

It is therefore effulgent that the decision of the lower Court and the award made was not for arrest and torture, but solely for the violation of the constitutional right to life enshrined in Section 33 (1) of the Constitution. This is what the lower Court stated at page 104 of the Records:

“Be that as it may, it has been the constant and unambiguous provision in our past and present constitutions that every Nigerian has a right to life and no one shall be deprived of his life save in execution of the sentence of a Court of law in respect of a criminal offence of which the person has been found guilty in Nigeria. See Section 33 (6) of the Constitution of Federal Republic of Nigeria 1999 (as amended).”

For primal consideration and resolution in this appeal is whether the lower Court was correct in its finding and decision that the affidavit evidence established that the killing of Serifat Ogunsina was not in execution of the order of any Court in Nigeria and that it was illegal, unlawful and in flagrant violation of Section 33 (1) of the 1999 Constitution as amended.

The action at the lower Court was for the enforcement of fundamental rights. It was not a criminal prosecution for murder or manslaughter. This remains so, irrespective of the fact that the action which resulted in the infringement of the fundamental right was the killing of the Respondent’s sister. The Appellants are obsessed with their contention that since the facts on which the application for enforcement of fundamental rights are founded amount to criminal offences, that the Respondent did not prove the allegations beyond reasonable doubt. I am not enthused by this contention. I do not think that the fact that the allegations have some criminal connotation would change the character and complexion of the case from one for the enforcement of fundamental rights, in order to require the Respondent to meet the criminal standard of proof beyond reasonable doubt. See OMONYAHUY v. IGP (2015) LPELR (25581) 1 at 70 and 77 and NPF v. OMOTOSHO (2018) LPELR (45778) 1 at 43-44. This Court, per Tsammani, JCA eloquently captured the legal position in the following words in the case of ADEKUNLE v. A-G OGUN STATE (2014) LPELR (22569) 1 at 23-24:

“This matter was initiated under the Fundamental Rights (Enforcement Procedures) Rules, 1979. It is not in doubt that, the Fundamental Rights (Enforcement Procedure) Rules have been made as a special procedure for the speedy enforcement of the fundamental rights of the citizens. In other words, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action. It is a kind of action which may be considered as sui generis i.e. it is a claim in a class of its own, though with a closer affinity to a civil action than a criminal action. The remedy available by this procedure is to enforce the Constitutional Rights available to citizens which has been contravened by another or others. Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights, may have some criminal connotation, but will not raise the allegations of breach of fundamental rights to the level or pedestal of a criminal allegation. I am therefore of the view that, to raise the standard of proof in an action for the enforcement of fundamental rights to that required in a criminal allegation, merely because the facts giving rise to the breach or contravention have semblance of criminal acts, will defeat the purpose of Section 46 (1) of the 1999 Constitution of Nigeria, which seeks a simple, easy to attain and thus effective judicial process for the enforcement of fundamental rights available to citizens under Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.”

See also COMMISSIONER OF POLICE, EKITI STATE v. AREGBESOLA (2020) LPELR (50177) 1 at 29-31.

Having ascertained that the legal position is that the standard of proof in an action for the enforcement of fundamental rights is not the criminal standard of proof beyond reasonable doubt, we shall now reference the affidavit evidence which the lower Court held that it established the flagrant violation of the constitutional right to life under Section 33 (1) of the 1999 Constitution as amended. Actions for the enforcement of fundamental rights are governed by the procedure under the Fundamental Rights (Enforcement Procedure) Rules. It requires the use of affidavits for the speedy dispensation of fundamental rights actions. The actions are determined on the affidavit evidence of the parties, which affidavit evidence is properly evaluated by the Court to ascertain if the applicant had discharged the onus of proving that the fundamental rights were indeed eviscerated. See JACK v. UNIV OF AGRIC, MAKURDI (2004) LPELR (1587) 1 at 13-14, ONAH v. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536, MBANG v. JANET (2014) LPELR (22656) 1 at 27 and GEORGEWILL v. LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 27-28.

In the exordium, I redacted the case of the parties as made out in their respective affidavits. From the facts as made out, there is no dispute about the Appellants having fired shots at the Owode Area of Ogun State when they went for an operation. The only areas of disagreement and the crux of the question to be resolved was whether death occurred consequent upon the shooting and whether the Appellants were at the scene on 21st January, 2019 as opposed to 25th January, 2019 asserted by the Respondent. For the Appellants, no one died as a result of the shots they fired into the air to disperse the hoodlums that attacked them while the Respondent’s case is that the deceased Serifat Ogunsina was shot dead.

Section 33 (1) of the 1999 Constitution which enacts the constitutional right to life provides:

“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 in Nigeria.”

The lower Court held that this fundamental right was infringed as there is no evidence to show that the killing of the deceased, Serifat Ogunsina, was in execution of the order of Court in Nigeria and that the evidence was that the deceased, Serifat Ogunsina, was in her shop on the fateful day doing her normal lawful business, when the Appellants’ officers fired shots and a bullet hit and killed her (see page 104 of the Records).

Let me iterate that the main area of disagreement is on the presence of the Appellants’ officers at Owode on 25th January, 2019 when the deceased was killed as opposed to 21st January, 2019 when they concede that they were at Owode Area, shot in the air, but that no one was killed. The Appellants challenge the reliance by the lower Court on Exhibits B and D of the Respondent’s Further Affidavit, contending that the said Exhibits were not Police Investigation Report and do not state the cause of death and persons responsible for the death.

With due deference to learned counsel for the Appellants, the lower Court rightly utilised Exhibits B and D to resolve the main areas of disagreement as to when the incident happened, whether 21st January, 2019 or 25th January, 2019 and whether any persons died. The lower Court consequently held that the 1st Appellant’s officers were actually at Owode Area on 25th January, 2019 and that all accusing fingers point to the Appellants’ officers as the violators of the right to life. (See pages 102 and 103 of the Records). Now, Exhibit B is the letter from the Divisional Police Officer in charge of Owode Police Division and it confirms that there was an incident of extra-judicial killing of five (5) persons in the Owode Area of Ogun State by Customs Officers attached to Idiroko Border on 25th January, 2019 and that it was already subject of investigation by the State Criminal Intelligence and Investigation Department (SCIID) Abeokuta. So it establishes that the incident was on 25th January, 2019. (See page 34 of the Records).

On the other hand, Exhibit D is a letter from State Hospital Ota (see page 39 of the Records), and it acknowledges that five corpses were brought in dead on 25th January, 2019, allegedly killed by Customs Officers and deposited at the Hospital by policemen from Owode Police Division. So Exhibit D affords evidence on record that some persons died as a result of the incident, contrary to the Appellants’ contention that nobody died. So the integral evaluation of the affidavit evidence and Exhibits B and D establish that it was on 25th January, 2019 that the Appellants’ officers fired the shots at the Owode Area and that some persons died from the shots that were fired.

The Appellants’ complaint against the decision of the lower Court is that the lower Court failed to properly evaluate the evidence before it and thereby came to a wrong conclusion as there was no evidence before it that the Respondent proved her case. In ONI v. JOHNSON (2015) LPELR (24545) 1 at 27-30, I had the privilege of stating as follows:

“But what amounts to evaluation of evidence? This is a question that was admirably dealt with and answered by Oputa, JSC (of most blessed memory) in ONWUKA v. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 where he stated:

‘What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc….

Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. MOGAJI and ORS v. MADAM RABIATU ODOFIN and ORS (1978) 4 SC 91 at 93:

‘When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before him, (the trial Judge)… Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’

The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…

Even in Mogaji’s case… this Court held at p.94:

‘Therefore in determining which is heavier, the Judge will naturally have regard to the following:

(a) Whether the evidence is admissible;

(b) Whether it is relevant;

(c) Whether it is credible;

(d) Whether it is conclusive; and

(e) Whether it is more probable than that given by the other party.’

It would appear that evaluation of evidence is basically the assessment of the facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI v. OLANIYI (2005) 5 NWLR (PT 919) and AMEYO v. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. A Court of trial has the duty to consider the evidence adduced in respect of any facts on which issues were joined, decide which evidence to prefer on the basis of how the evidence preponderates and then make logical and consequential findings of facts. See ADEYEYE v. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451 and STEPHEN v. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA v. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898.”

In précis terms, evaluation of evidence is the assessment of facts by the Court to ascertain which of the parties to a case has more preponderant evidence. The lower Court in entering judgment for the Respondent held that the Respondent had more preponderant evidence. The Appellants hanker after the decision being set aside based on their contention that the lower Court failed to properly evaluate the evidence and thereby came to a wrong decision. The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except, inter alia, where there is insufficient evidence to sustain the judgment, or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence, or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO v. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE v. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM v. GUDI (1981) 5 SC 291 at 320, FASIKUN II v. OLURONKE II(1999) 2 NWLR (PT. 589) 1 or (1999) LPELR (1248) 1 at 47-48, TERIBA v. ADEYEMO (2010) LPELR (3143) 1 at 15-16,ATOLAGBE v. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU v. UZOWUAKA (2009) LPELR (515) 1 at 17-18.

I have painstakingly gone through the evidence on record with the finery of a judicial toothcomb and I am not in any doubt whatsoever that the lower Court justifiably appraised the facts and unquestionably evaluated the evidence. The findings arrived at flows from the accepted evidence and they are not perverse. There is no basis for an appellate Court to interfere since it is not the business of an appellate Court to embark on a fresh appraisal of the evidence when the trial Court has unquestionably evaluated and appraised the evidence. See AYANWALE v. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE v. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS and EXCISE v. BARAU (1982) LPELR (786) 1 at 47.

I am satisfied that the lower Court unquestionably evaluated the evidence, justifiably appraised the facts and came to the correct conclusion on the evidence.

The concatenation of the foregoing is that the sole issue for determination is resolved against the Appellants. The appeal is bereft of any merit. Accordingly, the appeal fails and is deserving of dismissal. However, given the manner in which the preliminary objection on the service of the Notice of Appeal was resolved, the proper order to make since the jurisdiction of the Court to entertain the appeal was not activated will be an order striking out the appeal for want of jurisdiction. See ODEY v. ALAGA (supra). The appeal is accordingly struck out with costs of N200,000.00 in favour of the Respondent.

JIMI OLUKAYODE BADA, J.C.A.: I had the preview of the lead judgment just delivered in this appeal by my learned brother UGOCHUKWU ANTHONY OAGKWU, JCA. I agree with my Lord’s analysis and conclusion on the issues in the appeal.

I will also emphasise that the Notice of Appeal is the Originating Process and spinal cord of an appeal and that the failure to serve the Respondent with the Notice of Appeal is a fundamental defect which affects the jurisdiction of this Court to entertain the appeal.

Order 2 Rule 1 of the Court of Appeal Rules 2021 requires that service of the Notice of Appeal be effected on the Respondent personally or by electronic mail to the electronic mail address of the Respondent.

In this appeal, it was shown beyond reasonable doubt that the Notice of Appeal was not served on the Respondent. The consequence of this is that the jurisdiction of this Court is not activated.

The non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and liable to be struck out.

See – ODEY v. ALAGA and ORS (2021) LPELR-53408 (SC).

– AKINLOYE v. ADELAKUN (2000) 5 NWLR PART 657 PAGE 530.

– SKEN CONSULT NIG. LTD v. UKEY (1981) S. C. PAGE 6.

– NBN LTD v. GUTHRIE (NIG) LTD (1993) 3 NWLR PART 1195 PAGE g.

Consequent upon the foregoing and in view of the detailed reasons contained in the lead judgment, I am also of the view that this appeal deserves to be struck out and it is hereby struck out.

I abide by the order as to cost made in the lead judgment.

ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I totally agree with his reasoning and conclusions both as they relate to the Respondent’s preliminary objection and to the substantive appeal.

Starting with the Respondent’s preliminary objection which is predicated on non-service of the Notice of Appeal, as well as the incompetence of the Notice of Appeal, it is trite that a Notice of Appeal is the originating process that initiates an appeal: OKARIKA and ORS v. SAMUEL and ANOR (2013) LPELR-19935(SC), per Ogunbiyi, JSC at page 31, para. C; and DANIEL v. INEC (2015) LPELR-24566(SC), per Rhodes-Vivour, JSC at pages 32 – 33, para. E.

Starting with the non-service of Notice of Appeal, Order 2 Rule 1 of the Court of Appeal Rules(of both 2016 and 2021), mandates that Notice of Appeal be served personally or by electronic mail to the electronic mail address of the Respondent(s). In the instant appeal, the record shows that service of the Notice of Appeal was only attempted by the Bailiff at the Respondent’s address for service on record, but was not effected as required by the Rules. Being an originating process, Notice of Appeal must be served personally on the Respondent(s) unless otherwise ordered by the Court or exempted by law. See IHEDIOHA and ANOR v. OKOROCHA and ORS (2015) LPELR-40837(SC), per Okoro, JSC at page 31, para. A. It is the proper service of the Notice of Appeal that activates the jurisdiction of the Court to entertain the appeal: ADERIBIGBE and ANOR v. ABIDOYE (2009) LPELR-140(SC), per Oguntade, JSC at pages 28 – 29, para. D. In the instant appeal, the non-service of the Notice of Appeal on the Respondent has rendered the appeal incompetent and has not activated the jurisdiction of this Court to entertain same. I so hold.

As for the second ground of the Respondent’s preliminary objection which attacks the sole ground of appeal, the essential contention of the Respondent is that the sole ground of appeal is one of mixed law and fact and no leave of Court was sought before same was filed. On this contention, I observe that this appeal is against the final judgment of the Federal High Court. I hasten to state that by the express provision of Section 241 (1) (a) of the 1999 Constitution, appeals to the Court of Appeal from final decisions of the Federal High Court or a High Court sitting at first instance do not require leave of Court, whether such appeal be grounded on law, on fact or mixed law and fact: AULT and WIBORG (NIG) LTD v. NIBEL INDUSTRIES LTD (2010) LPELR-639(SC), per Fabiyi, JSC at pages 15 – 18, para. D and DANKWAMBO v. ABUBAKAR and ORS (2015) LPELR-25716(SC), per Peter-Odili, JSC at pages 61 – 62, para. E. Being an appeal against the final judgment of the Federal High Court, Abeokuta Division delivered on 16th July, 2020, the appeal is as of right. No leave is therefore required for the sole ground of appeal to be competent.

It is for the above reasons which are more elaborately espoused in the lead judgment that I also uphold the first ground of the preliminary objection over non-service of the Notice of Appeal and hold that the appeal is incompetent and ought to be struck out.

On the appeal proper, the essential issue is whether the Respondent had proved her case to be entitled to the reliefs granted by the trial Court. Having carefully gone through the Record of Appeal, especially the affidavit evidence led before the trial Court and the Court’s evaluation and findings it made thereon, I am in agreement with the reasoning and conclusions of my learned brother Ogakwu, JCA that the trial Court had properly evaluated the evidence led before it. This being the case, an appellate Court which this Court is, will not interfere with the evaluation so carried out by the trial Court even if it would have evaluated such evidence differently: OBUEKE and ORS v. NNAMCHI and ORS (2012) LPELR-7810(SC), per Peter Odili, JSC at page 25, para. B.

Therefore, in the event that this appeal deserves a merited consideration, I also find the appeal devoid of such merit and deserving of a dismissal. However, since the preliminary objection of the Respondent over non-service of the Notice of Appeal has been upheld, I join my learned brother, Ogakwu, JCA in striking out the appeal for want of jurisdiction. I abide by the consequential order as to cost.

APPEARANCES

ABUBAKAR MUSA, ESQ. FOR THE APPELLANT; O. E. OGUNGBEJE, ESQ. FOR THE RESPONDENT.