Whether The Mere Filing of a Counter Affidavit Automatically Makes a Suit Contentious

CASE TITLE: NIGERIAN NAVY & ORS v. OYEGHE (2025) LPELR-82068(CA)

JUDGMENT DATE: 9TH SEPTEMBER, 2025

PRACTICE AREA: CONSTITUTIONAL LAW

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Enforcement of Fundamental Rights.

FACTS:

This appeal emanated from the judgment of the Yenagoa Division of the Federal High Court of Nigeria (trial Court), delivered by Hon. Justice Isa H. Dashen on 18 February 2022, in Suit No: FHC/YNG/CS/40/2021.

By an originating motion filed on the 14th of July, 2021, the Respondent as Applicant,, brought an action against the Appellants before the trial Court for the enforcement of his fundamental rights.

During the course of proceedings, the Appellants argued that the trial Court was not vested with jurisdiction to entertain the entire suit due to the failure of service of the Court’s processes on them by the Respondent which is a condition precedent for assumption of jurisdiction. They argued that it was upon the receipt of the hearing notice that they applied to the trial Court for the certified true copies of the Court’s processes. Therefore, they filed a preliminary objection challenging the service and their counter affidavit to the substantive suit on the 8th June, 2022, which, according to them, was also the first day they appeared before the trial Court.

It was argued that aside from the Respondent’s incompetent counter affidavit, he failed to file a further affidavit 35(1) to rebut the averments in their substantive counter affidavit. The Appellants maintained that they unequivocally showed that at the time of the trial, the Respondent was not in their custody but in the custody of the Directorate of Military Intelligence (DIA) and that the DIA should have been joined as a necessary party to the suit. the Appellants further argued that the Respondent’s right to personal liberty was not an absolute right and that they only arrested him pursuant to the provisions of Section 1(4)(a) of the Armed Forces Act for serious crimes such as murder, kidnapping, and piracy committed along the waterways. They argued that the detention of a person in relation to a reasonable suspicion of having committed a capital offence has a separate legal consequence. The provisions of Section 35(1), (4) & (7)(a) of the 1999 Constitution of the Federal Republic of Nigeria were made reference to in maintaining that the arrest and detention of the Respondent fell under the exception provided for under Section 35(7)(a) of the 1999 Constitution of the Federal Republic of Nigeria. A reply brief was also filed in response thereto.

According to the Respondent, on the 24th of July, 2020, men and officers of the Appellants arrested and detained him at Agudama Epi Naval Base, but later transferred him to the Igbogene Naval Base at Yenagoa, Bayelsa State, where his rights were brazenly abused. As a sequel to the abuses, the Respondent caused a petition to be written on his behalf to the Chief of Naval Staff, but his petition was not responded to; thus, he approached the trial Court for the enforcement of his fundamental rights.

On their end, the Appellants did not deny the arrest and detention of the Respondent, but stated that the Respondent’s arrest was due to their findings involving the Respondent in the offences of kidnapping, piracy and murder of persons, which included 4 naval personnel on board MV AMBIKA along the Yenapersons, Goa, waterways. They stated that the Respondent was then handed over to the Defence Intelligence Agency (DIA) for further investigations.

At the close of proceedings, the trial Court assumed jurisdiction over the matter instituted by the Respondent and thereafter proceeded to grant the reliefs sought against the Appellants, although with slight variations to certain reliefs sought.

The Appellants, being dissatisfied with the said judgment of the trial Court, approached the Court of Appeal by filing a notice of appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

1. Whether there was service of the originating processes on the Appellants and if not, whether the learned trial Judge was vested with jurisdiction when he delivered the judgment against the Appellants.

2. Whether considering the entire circumstances of the case, the trial Court was right when he ordered the Appellants to release the Respondent by way of arraignment or bail which Respondent was not under their custody.

3. Whether considering the case of the parties, the trial Judge was right when he held the Appellants liable for the violation of Respondent’s fundamental right.

4. Whether or not the award of N50m damages against the Appellants was proper.

DECISION/HELD:

The appeal lacked merit and it was thereby dismissed. The judgment of the trial Court delivered on 18th February, 2022, was affirmed in its entirety.

RATIOS:

• CONSTITUTIONAL LAW- RIGHT TO PERSONAL LIBERTY: Whether damages will be awarded where there is interference with the liberty of a person
• CONSTITUTIONAL LAW- BREACH OF FUNDAMENTAL RIGHTS: Circumstances that amount to breach of fundamental rights
• EVIDENCE- AFFIDAVIT EVIDENCE: Whether the mere filing of a counter affidavit automatically makes a suit contentious
• EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: Whether he who asserts must prove
• EVIDENCE- AFFIDAVIT EVIDENCE: Effect of uncontroverted facts in an affidavit
• PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Whether service of originating process(es) is a pre-condition to the exercise of jurisdiction by the Court; effect of failure to serve same where required
• PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Whether a counsel qualifies as an officer of the Court that can serve court processes under the FREP Rules

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