CASE TITLE: EFCC & ANOR v. OBILO & ORS (2023) LPELR-60091(CA)
JUDGMENT DATE: 16TH FEBRUARY, 2023
JUSTICES: RITA NOSAKHARE PEMU, JCA
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA
ADEMOLA SAMUEL BOLA, JCA
PRACTICE AREA: JUDGMENT AND ORDER
The 1st and 2nd Respondents being the Applicants filed an Originating Motion against the Appellants (as 6th and 7th Respondents before the trial Court) and the 3rd-5th Respondents, pursuant to Order 2 Rules 1-4 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Section 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the inherent jurisdiction of the Court for the enforcement of their Fundamental Human Rights and sought reliefs at the trial Court.
The trial Court dismissed most of the reliefs sought but granted the 5th, 6th, and 10th reliefs. The Court held that the seizure of the first Respondent’s international passport should have been temporary and found the Appellants in breach of the 1st Respondent’s fundamental rights. The Court ordered the release of the passport and awarded damages of N1,000,000 against all Respondents jointly and severally. Aggrieved with the decision granting part of the prayers of the 1st and 2nd Respondents, the Appellants filed this appeal.
ISSUES FOR DETERMINATION:
The appeal was determined on the sole issue, thus:
Whether the judgment of the lower Court should be set aside on its decision that the Appellant and the 3rd-7th Respondents breached the right of the 1st Respondent to own property.
The grouse of the Appellants is that on the face of the originating process, the 1st & 2nd Respondents asked the trial Court to make an order securing the enforcement of their fundamental rights to personal liberty, human dignity and freedom of movement. They did not ask the trial Court to make an order securing the enforcement of their fundamental right to own property. The Court was thus in error to hold, at Page 92 of the record that:
“In the instant case, the breach referred to in this judgment is the Respondents(s) breach of the 1st Applicants(s) right to own property i.e. his international passport which has been in the compulsory possession of the 7th Respondents(sic) for more than 10 months, therefore relief number 6 (six) sought by the Applicants succeeds and it is hereby ordered that: (a) the 6th and 7th Respondents release the 1st Applicant’s International passport/travel documents to the 1st Applicant forthwith. (b) That damages is awarded to the 1st Applicant against all the Respondents jointly and severally in the sum of N1,000,000.000 (One Million Naira) only. “
It is trite law, their Counsel contended, that a Court has no power to grant to a party a relief which he has not sought for or claimed. It is not the function of the Court to make a gratuitous award. He cited Ademola v. Sodipo (1992) 7 NWLR Part 253 Page 251, Ogbebor v. Utagba Rubber Estate Ltd (2014) LPELR- 24476 (CA) among a host of other authorities.
In response, the Counsel to the 1st and 2nd Respondents submitted that it was wrong for the Appellants’ Counsel to single out a word in a sentence and base their whole appeal on the said obiter. An appeal ought to be fought on the basis of the decision and the reasons therefor. It is not every pronouncement made by the Court that can be made the subject of appeal. He argued that the statement of the Court where it stated that the breach referred to is the Respondent’s breach of the 1st Respondent’s “right to own property i.e. his international passport which had been in the compulsory possession of the 1st Appellant for more than 10 months” should be read along with the latter part of the statement that “relief number 6 succeeds”.
He argued that throughout the judgment the Court never stated that the said breach was one of right to own property, rather the Court reviewed Sections 34, 35 and 41 of the 1999 Constitution which is the important section in question. He cited the case of Timothy v. The People of Lagos State (2021) 11 NWLR (Pt.1787)251 at P.284, Paras. B-C that where a comment by a Judge is just by the way and a passing remark which does not change or enhance the course of events, it has no relevance to the real issues in controversy. Also citing Ofodile v. Onijeme (2021) 7 NWLR Part 1775 Page 389 Para D-G and Mohammed v. State (2021) 6 NWLR Part 1771 Page 153-154 Para F-A, he submitted that it is not every error of law committed by the trial Court that will lead to the reversal of the judgment. For an appellate Court to reverse the judgment, it must be established that the error substantially affected the result of the decision and occasioned a miscarriage of justice.
The appeal was dismissed.
JUDGMENT AND ORDER – ERROR/MISTAKE IN JUDGMENT: Whether reliance of a Court on a wrong Section/provision of the law in granting relief to a party who properly claimed the relief will be fatal
“The simple question to be answered, in the resolution of this issue is whether the statement by the lower Court that the breach referred to is the 1st Appellant’s breach of the 1st Respondent’s right to own property renders the award of damages unlawful and liable to be set aside.
I note that the 5th relief sought by the 1st and 2nd Respondents’ in their Statement accompanying the Originating Motion, to recap, is for the following:
A declaration of the Honourable Court, that the detention of the 1st Applicant from 3rd May, 2016 to 5th May, 2016 at the 7th Respondent’s cell in Enugu and the seizure and continued detention of the 1st Applicant’s international passport/travel documents from 3rd May, 2016 till date, by the men and officers of the 7th respondent, led by the 6th Respondent at the instigation of the 1st – 5th Respondents even while the 1st Applicant is on bail and same not being part of the 1st Applicant’s bail condition amounts to a breach of the 1st Applicant’s Fundamental Right to Freedom of Movement as guaranteed and protected by Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as Articles 6 of the African Charter on Human and Peoples Right (Ratification and Enforcement Act) Cap. 10 L. F. N 1990.
The Court, in granting this relief, referred to the breach as “breach of the 1st Applicants(s) right to own property i.e. his international passport” rather than “a breach of the 1st Applicant’s Fundamental Right to Freedom of Movement as guaranteed and protected by Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”.
In so holding the trial Court appears to have made the award under Section 44 of the Constitution, for the protection of the citizen’s rights from compulsory acquisition of his moveable or immovable property.
The question is whether this error by the Court disentitles the 1st Respondent to this award, which relief was properly claimed by him under Section 41 of the Constitution. Section 41 (1) of the Constitution of the Federal Republic of Nigeria 1999 Supra provides as follows:
(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
The reasoning of the Court is clear in its judgment on Pages 90-91 of the Record where it held:
“I am totally in agreement with the submission of Applicant’s Counsel on this point that the 7th Respondent’s (EFCC) seizure of the 1st Applicant’s passport (1st Respondent herein) ought to be temporary for the examination of any sort of investigation of any matter.
If the seizure of the Applicant’s passport is for any examination or investigation of the complaint as per EFCC 1, that investigation or examination ought to have been long concluded after 10 months and the 7th Respondent has not filed any charge in Court against the 1st Respondent. To that extent, the 7th Respondent is in breach of the 1st Appellant’s fundamental right guaranteed by Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”. While I agree with the lower Court that the seizure of the 1st Respondent’s passport for a period of 10 months, without any charge having been filed in Court, is a breach of the fundamental rights of the 1st Respondent, I disagree that the breach is pursuant to Section 44 of the Constitution. The appropriate Section should have been Section 41, as sought by the 1st Respondent in his relief.
The lower Court, in making the grant under Section 44 instead of 41 of the Constitution was clearly in error.
As has however been submitted by the Counsel to the 1st and 2nd Respondents, it is not every error made by the lower Court that will result in the appellate Court setting aside the judgment of the Court, more so, if the error is not substantial and if there is other evidence to support the judgment. See Kwara State Judicial Service Commission v. Toni (2019) 7 NWLR Part 1671 Page 382 at 399 Para A-B G per Peter-Odili JSC; Diamond Bank Ltd v. Partnership Investment Co. Ltd. (2009) 18 NWLR Part 1172 Page 67 at 95 Para G-H, per Ogbuagu JSC.
In Offodile v. Onejeme (2021) 7 NWLR Part 1775 Page 389 at 416 Para D-G, the Supreme Court, per Jauro, JSC held as
“It is trite law that it is not every error of law that is committed by a trial or appellate Court that justifies the reversal of the particular Court’s judgment on appeal. For an appellant to secure the reversal of the judgment he appeals against, beyond establishing the error he hinges his complaint upon, he must go the extra mile of establishing that the error complained of and established has substantially affected the result of the decision and/or occasioned miscarriage of justice. Thus, where in spite of the error made out by the appellant the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed.”
Indeed, as held by the Supreme Court in Zailani v. Gumau (2020) 2 NWLR Part 1709 Page 452 at 471 Para A per Eko JSC, where the error is not substantial and does not occasion any miscarriage of justice to the Appellant, the appellate Court, upon correcting the non-substantial error can still go ahead to uphold the substantial justice manifest on the printed records. In the instant case, referring to the breach as being the 1st Respondent’s right to own property is not fundamental, I hold, as it is clear that the breach referred to is as stated in the 5th relief sought by the 1st Respondent, viz the “seizure and continued detention” of his “international passport/travel documents from 3rd May 2016 till date by the officers and men of the 7th Respondent, (1st Appellant) led by the 6th Respondent (2nd Appellant)….amounts to a breach of the 1st Applicant’s right to freedom of movement as guaranteed and protected by Section 41 of the Constitution..”
This Court, pursuant to its powers under Section 15 of the Court of Appeal Act can correct the error made by the lower Court in granting the relief under Section 44 of the Constitution, substituting therefor Section 41 of the Constitution of the Federal Republic of Nigeria. This, I hold, is the substantial justice of the case, as advocated in Zailani V. Gumau supra.” Per ADEFOPE-OKOJIE, J.C.A.
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