Vanguard (Lagos)

Nigeria: The Judgment That Set Peter Odili Free (IV)

opinion

Justice Buba who indicated that the Odili judgment was delivered in rem, explains the status of such adjudications

THIRDLY, it is clear, that the 2nd defendant has not alleged any offence against the plaintiff in his personal capacity. Rather, the allegation is about what he did in his official capacity as Governor of Rivers State. It is argued that it remains to add by way of further elucidation, that although the 2nd defendant had raised a preliminary objection challenging the suit, on grounds of jurisdiction, it never, addressed the issues raised by the plaintiff, for determination.

The questions before the Court do not seek to delimit the statutory powers of the 2nd defendant. The questions deal with, whether the 2nd defendant can ignore a subsisting, valid and final judgment of a duly constituted court. All the points being canvassed by the 2nd defendant about a court order purporting to restrain the performance of a statutory duty, are beside the point. It would have, perhaps, been a different matter if judgment in Suit No. FHC/PH/CS/78/2007 has not been delivered. It is submitted, therefore, that the 2nd defendant has not addressed the issues raised by the Originating Summons in these proceedings.

In conclusion, it is submitted that the argument raised under issue number two, Court is urged, to answer the question posed in the negative, and hold that the 2nd defendant cannot proceed against the plaintiff for any alleged offence committed while in office, since the investigations and findings for that period have been voided by the court.

It is argued by the plaintiff that the 2nd defendant filed term counter claim, and sought for One billion naira (N1,000,000,000.00) damages, against the plaintiff. It is, however, evident from all account, that it was a claim made in jest, and for the purpose of cheap publicity. No evidence was advanced; no argument proffered.

Indeed, the so called counter claim is incompetent, and should be dismissed as an abuse of court process.

In conclusion, the plaintiff urged the Court, to answer the two questions raised in the originating summons in the negative, and also dismiss the preliminary objection as well as the Counter-Claim for the following reasons.

1. The subsisting judgment of the Federal High Court in Suit No.FHC/PH/CS/78/2007 is a final judgment and binding on all parties, and non-parties alike.

2. The said judgment, being a judgment in rem, has pronounced on the status of the alleged investigation conducted by the 2nd defendant into the affairs of Rivers State and declared same unconstitutional, null and void.

3. There is no appeal against the decision in FHC/PH/CS/78/2007, and therefore, the defendants cannot ignore its effect.

4. The preliminary objection filed in these proceedings is misconceived and the arguments canvassed therein lack merit. Stricto senso, it was not shown, how this Honourable Court lacked the jurisdiction to entertain the present action.

5. No argument was canvassed, and no evidence was produced, to sustain the so-called counter-claim.

6. By reason of Section 287(3) of the 1999 Constitution, the defendants are under a legal duty to obey and enforce the obedience to the judgment of the court, unless, and until, it is set aside.

7. No legal proceedings, criminal or civil, can be based on the investigation, findings, report and actions, conducted by the 2nd defendant on the basis of its investigation into the finances of Rivers State, between May 29th 1999 and May 29th 2007 in view of the subsisting judgment of the court in Suit No. FHC/PH/CS/78/2007.

I have read the process filed in the instant suit. I have equally read the arguments and submissions of counsel filed in this suit and indeed the authorities cited and relied upon by learned counsel for the 2nd Defendant Mr. James Binang and Mr. I. A. Adedipe SAN, learned counsel for the Plaintiff which I have virtually reproduced for the purpose of emphasis and clarity.

Let me say quickly by way of preliminary remarks, that any reference to the case of Minster of Internal Affairs vs. Shugaba Abdurrahaman Darman (1983) 3 NCLR PAGE 915 the judgment of Mamman Nasir P. is a Dissenting Judgment. It is not the majority judgment, therefore, it could not have been the law then, not being a majority judgment of the Court of Appeal. But it also seem to me very clear that the minority judgment of Mamman Nasir P. appears to be the hallmark of decree No. 107 of 1993 that has now given birth to section 251 of the 1999 Constitution of the Federal Republic of Nigeria.

Let me say outright, without much ado that ground one of the notice of preliminary objection is targeted at the judgment of this court of 20/3/07. In other words the ground is questioning the validity and conclusions in that judgment. That was the submissions of the 2nd Defendant, then 1st Defendant before this court. I am afraid this matter is now beyond the 2nd Defendant to raise in this court. Indeed the 2nd Defendant is estopped from raising this issue as this court cannot sit as an appellate court over its own decision. Indeed this is an issue that shall be canvassed, in ground one of the 2nd Defendant notice of appeal as contained in Exhibit EFCC 1, if the appeal is ultimately entered in the Court of Appeal for hearing and argument.

On the 2nd ground, let me also say the declaratory reliefs made in the judgment in suit No. FHC/PH/CS/78/07 is a judgment in rem. What is a judgment in rem? Learned senior counsel for the plaintiff dwelled extensively on the issue of judgment in rem to which the second defendant did not reply or even attempt to contest the argument; on the undoubted and unassailable position of the law. The submissions and the cases cited above says what a judgment in rem is. Without labouring the issues, see THE ENGLISH AND EMPIRE DIGEST VOL. 30 1973 REISSUE AT PAGE 171 PARA. 51-52 AND AT PAGE 173 PARA 61 wherein it provides:

Jurisdiction of court

51. To constitute a judgment in rem, the judgment must be a judgment of competent court in respect of a res actually or constructively within the jurisdiction of the court, and the judgment must determine the right to, or disposition of, such res in the control of the court. (Williams L.J.).-Francis, Times and Co. vs. Carr (1900), 82. L.T 698; 16T. L. R. 405, C. A.; on Appeal sub nom. Carr v. Francis, Times, & Co., (1902) A. C. 176; 71 L.J.K.B. 361; 85 L. T. 144; 50 W. R. 257; 17 T. L. R. 657 H. L.

52. It is by no means easy to find a satisfactory definition of a judgment in rem. In Smith's Leading cases, it is defined as "an adjudication pronounced, as its name indeed denotes, upon the status of some particular subject matter by a tribunal having competent authority for that purpose." There are, however, two classes of judgments in rem, one of which is conclusive against all the world and the other of which is not conclusive, though admissible, in any other proceedings. Instances of the former class are adjudications by a competent court as to the existence of a marriage, or a condemnation of a prize in the admiralty court.

A familiar instance of the second is an inquisition in lunacy, which has always been allowed to be read in a subsequent suit between third parties as evidence of the lunacy, though it is not conclusive and may be traversed (COZENS HARDY, M. R.). -HILL vs CLIFFORD, CLIFFORD vs. TIMMS, CLIFFORD vs. PHILLIPS, (1907) 2 Ch. 236.

Judgment in rem

In the same Empire Digest the effect of a judgment in rem is distinguished from judgment in personam - as:

The difference is pointed out clearly in Smith's leading cases, and some of the authorities there mentioned, between the proceeding in rem, and the proceedings in rem personam in this respect; that the proceedings in rem binds everybody, binds third parties to the litigation (WOOD vs V-C.) - SIMPSON vs. FOGO (1860) 1 JOHN & H. 18; 29 L. J. Ch. 657; 6 JUR. N. S. 949; 8 W. R. 407; 70 E. R. 644; sub nom. LIVERPOOL BANK vs. FOGGO, 2 L. T. 594; subsequent proceedings (1863), 1 Hem & M.195.

See also the case of Adesina Oke vs. SHITTU ATOLOYE & OTHERS (1986) 1 N.W.LR. (PART 15) page 241 at 242.

To my mind the issue of the plaintiff in this originating summons, not being a party in the previous suit No. FHC/PH/CS/78/07 is neither here nor there. It is of no moment. Therefore, this Court cannot see the woods for the trees in the argument of the second defendant. It is equally glaring that the 2nd defendant misconceived the ratio decidendi in the cases cited vis-a-vis the peculiar facts and circumstances of this suit in which there is a subsisting and binding judgment. Again see paragraphs 604 - 609 of the Empire Digest at page 254.

604. Only ratio decidendi. The only use of authorities or decided cases is the establishment of some principle, although I myself do not concur in it and although it has only been the decision of a court of co-ordinate jurisdiction I have felt bound to follow it (Jessel, M.R). - Re HALLETT'S KNATCHBULL vs. HALLETT'S ESTATE, (1874-80) ALL E.R. REP. 793; 49 L.J. CH. 415; 42 L.T. 421; 28 W.R. 732, C.A.

606. In courts of equity the judges are judges of fact as well as of law, and when a judge of those courts has laid down a rule of conduct, his successors have usually followed it; but a rule of conduct is not a conclusive authority binding his successors in the decisions of questions of fact; it is decisions upon questions of law which are binding (LORD ESHERM M.R.) - Re NORMAN (1886),16 Q B D. 673L 54 L. T. 143; 34 W.R. 313; 2 T.L R. 272; sub non. Re NORMAN, Ex p. BRADWELL L.J. Q. B. 202, C.A.

Indeed The Federal High Court of Nigeria is a court of law and equity as it administers both law and equity. Again see paragraphs 608 of the Empire Digest where it provides:

Importance of precedence

608. The binding force of previous decisions, unless the facts are indistinguishable, depends on whether they establish a principle. To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code.

But when a previous case has not laid down any new principle but merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances and to erect a previous decision into a governing precedent merely on this account.

To look for anything except the principle established or recognised by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance (LORD HALDANE C.)

Elsewhere at 609, it is provided:

609. When any tribunal is bound by the judgment of another court, either superior or co-ordinate, it is bound by the judgment itself; and if from the opinions delivered it is clear what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But if it is not clear, then it is not part of the tribunal's duty to spell out with great difficulty a ratio decidendi in order to be bound by it.

I have no doubt from the misconception of the import and purport of the judgment in suit No. FHC/PH/CS/78/07 the 2nd defendant made far reaching submissions on the General Position and propositions of law without adverting its mind to the judgment which nullified its actions that it intends to rely on.

I think with respect, the 2nd Defendant/Applicant should draw a line between the general principles of law decided in the cases of Fawehimni vs. IGP (supra), Bamidele vs. Commissioner for L.G. (supra), and Nnwei & Sons v. COP (supra), to the effect that a Plaintiff cannot institute an action to preclude him from being investigated and prosecuted, and that the 2nd defendant cannot be restrained from performing its statutory duty. In the instant suit, the 2nd defendant has lost sight that there is a valid judgment of a competent court on the status of a step taken by the 2nd defendant.

Era of impunity

The said step was declared ultra vires, unconstitutional, null and void; and as a follow up, the court restrained the 2nd defendant from putting to use that step that was nullified. That judgment to all intent and for all purposes is binding on the second defendant, unless and until set aside by an appellate court. Therefore there can be no impunity. The era of impunity is gone. We are in the era of Rule of law where parties and indeed the courts are bound by their decisions.

I make bold to say that the court as a final arbiter between all persons and authorities has undoubted jurisdiction to strike down unconstitutional acts and ultra vires acts of a statutory body in any given case, that is being brought before the court. In this case, the 2nd defendant was brought before the court for the court to determine its conduct, act and/or omission which the court exercising its undoubted jurisdiction considered and declared that the acts and omission of the 2nd defendant then was unconstitutional, unlawful, invalid, ultra vires null and void.

In those circumstances and in the face of that valid and subsisting judgment, to which the 2nd defendant is a party and has not appealed, it does not therefore lie in the mouth of the 2nd defendant to sit at home and say that a party cannot by merely instituting a civil action in court preclude a statutory body or agency from performing its function.

Let me make it abundantly clear, that where a competent court of law has declared a status of a thing, and followed up the declaration, based on its findings with orders, the party affected can only test that finding by appealing against the judgment and not sitting at home and deciding the merits of the finding.

It is normal. It is not abnormal, for our courts to interpret the constitution and declare conducts of statutory bodies unlawful and ultra vires, where such conducts or acts are declared ultra vires or done in flagrant disregard of the law and afortiori the constitution.

Greater fluidity

In this particular instance, based on the findings of the court, it can not be said that the court has precluded the performance of a statutory duty by a statutory body or an agency of the Federal Government. Indeed a statutory body or an agency of the Federal Government can be restrained by the court. See the De Smith Judicial review of Administrative Actions Fourth Edition by J. M. Events 4th Edition at Pp. 99-100.

'Despite the greater fluidity of the court' approach to the interpretation of legislation and the inherently limited utility of general principles that have to be applied to widely varying contexts, the common law presumptions retain a great deal of their vitality. The greatest of these presumptions is that Parliament does not intend to deprive the subject of his common-law rights except by express words or necessary implication. This is the generic presumption of which the following are species: that, in the absence of express words or necessary intendment, statutes are not to be interpreted so as to authorise interference with the liberty of the person or deprivation of the property rights of the subject without compensation or restriction of the subject's rights and of access to the ordinary courts, or so as to abrogate existing contractual rights; and that statutory powers must as far as is reasonably practicable, be so exercised as to avoid injury or to minimise the scope of any injury that must inevitably be caused, to the rights of others.

Among other rules of construction, the following are especially important for the interpretation of statutory powers of public authorities: that express words are necessary to empower a public authority to raise money from the subject that in the absence of contrary intendment, the power is to be exercised only by the authority upon which it has been conferred; that express words or necessary implication are required to warrant the exercise of a statutory power with retroactive effect.

The presumption that Parliament does not intend to legislate in contravention of international obligations owned by the Government of the United Kingdom has recently been used on a number of occasions particularly to support an argument that a statute should, if possible, not be interpreted in a manner inconsistent with a provision of the European Convention on Human Rights. The application of a number of other rules and maxims of statutory interpretation will be considered in the course of this study.

Of the common-law presumptions, the most influential in modern administrative law is that which preserves the ultimate jurisdiction of the courts to pronounce on matters of law. Accordingly, only in the most exceptional circumstances will the courts construe statutory language so as to endow a public body with exclusive authority to determine the ambit of its own powers." (Emphasis Supplied)

Granted that this is a civil case, in which the plaintiff is saying the basis on which you want to proceed against me is nullified, can the 2nd defendant then be heard to argue that the court is invoking its general civil jurisdiction to preclude the agency of the Government from performing its function? To my mind that is begging the real issue before the court which is the basis upon which the action is nullified. The 2nd defendant is a party to that judgment. They were restrained from putting the investigation into use and they have not appealed against that finding, conclusion and orders.

It is the law even in criminal trials, where charges are framed. Courts have quashed indictment and stopped criminal trials from proceeding, based on the quashing of the indictment, in such situation or scenario the prosecution cannot be heard to argue that the courts have precluded it from performing its duty. See instances of Court quashing charges in the cases of Ikomi vs. State (1986) NWLR (pt. 28) 340 and the recent case of Abacha vs. State (2002) 11 NWLR (pt 779) 437.

In the instant case, it is not a general or blanket restraining order, without a matter going to court. This matter went to court and arguments were taken, judgment entered before the order was made. It does not matter that it is a civil suit. What matters is the validity and the obedience of that order and to who is the order directed and who is or are the beneficiaries of the order made.

I think with exhibit EFCC 1, the 2nd defendant has realized it ought to have appealed against the judgment of this Court. There is also a novel submission that this court should give a judgment in the second defendant's counter claim by way of declaration that the second defendant is now trying to appeal.

Academic argument

I have also noted the academic argument and reference to the case of Amani Tijani, the unreported decision of ECOWAS Court. While it is the law "the court will decide an academical question as their Decision will be merely obiter". See the case of Tindall vs Wright 1922 127LT.149.

The modern trend is that the Courts would not allow a body like the EFCC to break the law in the name of enforcing the law or to be law unto itself. There are plethora of authorities in the common law countries for the purpose of the academic submission of the second defendant. Let me take the liberty to mention a few and the general principles decided randomly and extensively for guidance. See the cases of R vs Michael Heston Francas (1984) 1 All E.R 785 Criminal App. Rep209 Bennet vs. Horseferry Road Magistrate court (1993)3 All E.R. 138, R.vs Mullen (1990) 3 WLR 777; R, vs Ward (1993) 2 All ER 577, Connelly vs. Director of Public Prosecution (1964) 2 All E.R page 401

In the recent case of R. vs. Mullen (1990), the Court of Appeal England, in a case where the accused was abducted from Zimbabwe it was held by the Court, revisiting a number of decisions in the common law of Commonwealth countries including South Africa that it is not right to do so. The cases cited above made the following pronouncement which I shall refer generally and randomly having found that the issue is academic. Some of the pronouncements read as follows:

"My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and parliament alike that it is the function of the high court to ensure that executive action is exercised responsibly and as parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it.

Prosecuting authorities

If a practice developed in which the Police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country, they would be flouting the extradition process for his benefit. It is in my mind unthinkable that in such circumstances, the court should declare itself to be powerless and stand idly by. I echo the words of Lord Delvin in Connely vs. DPP(1964) 2 All ER 40 at 442, (1964) AC 1254 at 1354:

"The courts cannot contemplate for a moment, the transference to the executive of the responsibility for seeking that the process of law is not abused. The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus, prevent a prosecution.

"So far as the ground upon which they did dismiss the information was concerned, every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court. I would answer the certified question as follows. (The high court in the exercise of its supervisory jurisdiction has power to inquire into circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradition procedures, it may stay prosecution and order the release of the accused.

Accordingly, I would allow this appeal and remit the case to the Divisional Court for further consideration.)

When we look to see how other jurisdictions have answered a question analogous to that before the House in terms of their own legal systems, the most striking example of an affirmative answer is the decision of the SOUTH AFRICAN COURT OF APPEAL vs. EBRAHIM 1991(2) SA 553 allowing an appeal against his conviction for treason by a member of African National Congress on the sole ground that he had been abducted from Switzerland, outside the jurisdiction of the South African court, by persons acting as agents of the South African state.

This decision, as the summary in the head note shows, resulted from the application of several fundamental legal principles, viz: Those that maintained and promoted human rights, good relations between States and the sound administration of justice: the individual had to be protected against unlawful detention and against abduction, the limits of territorial jurisdiction and the sovereignty of the State had to be respected, the fairness of the legal process guaranteed and the abuse thereof prevented so as to protect and promote the dignity and integrity of the judicial system.

Abduction of persons

The State was bound by these rules and had to come to court with clean hands, as it were, when it was itself a party to proceedings and this requirement was clearly not satisfied when the state was involved in the abduction of persons across the country's borders.

Such abuse could not be tolerated without debasing the processes of justice, so that the defendant was entitled to a hearing on his allegations .... government should be denied the right to exploit its own illegal conduct, and when an accused is kidnapped and forcibly brought within the jurisdiction, court's acquisition of power over his person represents the fruits of the Government's exploitation of its own misconduct.

The minority opinion was that this was an infringement of the rule of law which it was the court's duty to uphold. After referring to the South African decision in S vs. Ebrahim, Stevens J writes in the final paragraph of his opinion (at 2206).

Odili

The Court of Appeal South Africa - indeed, I suspect most courts throughout the civilized world - will be deeply disturbed by the "monstrous" decision the court announces today.

For every nation that has an interest in preserving the Rule of Law is affected, directly or indirectly, by a decision of this character. Inescapable duty to secure fair treatment for those who come or are brought before them. He said that "the courts cannot contemplate for a moment, the transference to the Executive of the responsibility for seeing that the process of laws is not abused" ...

Those remarks involved an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function.

Constitutional machinery

"It is the function and purpose of the courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase 'abuse of process' by itself does not give sufficient emphasis to the principle that in this context, the court must react not so much against an abuse of procedure that has been built up to enable the determination of a criminal charges as against the much wider and more serious abuse of the criminal jurisdiction in general.

Whatever differences there may be between the legal systems of South Africa, the United States, New Zealand and this country, many of the basic principles apply to any proper system of law than the maintenance of the rule of law itself. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.

Having taken cognisance of the lawlessness, it would again appear to me to be a wholly inadequate response for the court to hold that the only remedy lies in civil proceedings at the suit of the defendant or in disciplinary or criminal proceedings against the individual officers of the law enforcement agency who were concerned in the illegal action taken.

Degradation of the court's criminal process. To hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused, may be an extension of the doctrine of abuse of process but is, in my view, a wholly proper and necessary one.

My lords, a citizen whose rights have been infringed unlawfully or by overenthusiastic action on the part of an executive functionary has a remedy by way of recourse to the courts in civil proceedings. It may not be an ideal remedy. It may not always be a remedy which is easily available to the person injured.

It may not even, certainly in his estimation, be an adequate remedy. But it is the remedy which the law provides to the citizen who chooses to invoke it. The question raised by this appeal is: Whether, in addition to such remedies as may be available in civil proceedings, the court should assume the duty of overseeing, controlling and punishing an abuse of executive power leading up to properly instituted criminal proceedings not by means of conventional remedies invoked at the instance of the person claiminlg to have been injured by such abuse but by restraining the further prosecution of those proceedings. The result of the assumption of such a jurisdiction are threefold, and they are surprising.

First, the trial put in by a charge which has been properly laid will not take place and the person charged (if guilty) will escape a just punishment; secondly, the civil remedies available to that person will remain enforceable; and, thirdly, the public interest in the prosecution and punishment of crime will have been defeated not by a necessary process of penalising those responsible for executive abuse but simply for the purpose of manifesting judicial disapproval.

It is, of course, axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly, for that offence, he should not be tried for it at all.

That a criminal court's undoubted jurisdiction to prevent abuses of its own process should be extended, if indeed it does not already extend, to embrace a much wider jurisdiction to oversee what is referred to generally as the administration of justice, in the broadest sense of the term, including the executive act of law-enforcement agencies occurring before the process of the court has been invoked at all and having no bearing whatever upon the fairness of the trial.

First, does a criminal court have or should have, any general duty or any power to investigate and oversee executive abuses on the part of law-enforcement officers not affecting either the fairness of the trial process or the bona fides of the charge which it is called upon to try and occurring prior to the institution of the criminal proceedings and to order the discountenance of such proceedings and the discharge of the accused, if it is satisfied that such abuses have taken place?

That the court has powers to prevent the abuse of its own, I would accept, include power to investigate the bona fide charge which it is called upon to try and to decline to entertain a charge instituted in bad faith or oppressively-for instance if the accused's co-operation in the investigation of crime has been secured by an executive undertaking that no prosecution will take place.

Thus, I would not for a moment wish to suggest any doubt as to the correctness of a decision such as that in the recent case of R vs. Croydon Justice, ex p Dean (1993) 3 All ER 129, where the court quashed committal proceedings instituted after an undertaking given to the accused by police officers that he would not be prosecuted.

In such a case doubt is cast both upon the bona fides of the prosecution and on the fairness to an accused who has been invited to prejudice his own position on the faith of the undertaking.

This persuasive pronouncement stands to say more to the equally but only persuasive decision of the ECOWAS Court. However this issue is only academic as stated elsewhere in this judgment, because of the misconception it is tempting to portray it as the modern trend in the law.

The modern trend is rule of law. Having delved on the academic issue extensively to correct the erroneous impression created by the 2nd defendant's submission, let me say without much ado that I agree with the submissions of learned senior counsel for the plaintiff that the preliminary objection is misconceived, therefore, I have no hesitation in coming to the conclusion that the preliminary objection has no merit. Consequently it is hereby dismissed.

Having dismissed the preliminary objection I am left with the main matter. As stated elsewhere at the inception of this judgment and as rightly pointed out by Mr. Adedipe SAN, the defendants did not proffer any argument on the merit of the application.

Though the second defendant in his submissions stated that the plaintiff in the instant suit is not a party to suit no. FHC/PH/CS/78/07 that issue to my mind even though it is in the preliminary objection the issue also bothers on the main matter. However, the issue had been well tackled in the very clear and eloquent submissions of the plaintiffs counsel. '

Default of defence

That notwithstanding, this being a claim for declaratory reliefs same cannot be granted on admission or default of defence but with evidence and arguments. See the case of Ibrahim V. Military Administrator of Kaduna State (2004) 5 NWLR pt.866 page 322.

Moreso it is stated:

"In my opinion, under the power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide (LORD STERNDALE, M. R.)- HANSON V. RADCLIFFE U. D. C. (1922) 2 Ch. 490; All E. R Rep. 160; 91 L. J. Ch. 66 Sol. Jo. 556; 20 L. G. R. 541, C. A."

In the instant case, I am satisfied that the plaintiff has produced evidence and has proffered argument and none of the defendants made any submissions on the merit of the application. The 2nd defendant laboured to make submissions on issues that are not before the court, and left the issues before the court.

In the circumstances the case of the plaintiff becomes unchallenged on the merit and the court can accept the case of the plaintiff that is not challenged on the merits. See The Empire Digest on declaratory orders to interested parties not before the Court at paragraph 263 page 200.

Some interested parties not before court, by Ord. XXV, r. 5 (made applicable in the Eastern Region of Nigeria by sects. 14 & .5 of the High Court Law, (1958) the court has power to make "binding declarations of right, whether any consequent relief is or could be claimed or not.

Reps, on behalf of themselves and in a representative capacity on behalf of the Ukwa family, Onitsha, claimed, inter alia, a declaration of title to an area of land and consequential reliefs, but applicants, who by their defence, inter alia, set up the title of the Obosi people to the disputed land, denied that they were the persons to represent to Obosi people.

Personal capacity

The trial Judge was of the opinion that although the suit was against the applicants, in their personal capacity in substance it was the Obosi community who were with no proof of trespass or of being in possession by any applicants, who were sued in a personal capacity, and that an injunction would not lie against unlawful interference by them.

They could not be evicted, but as they raised in their defence the title of the Obosi people to the land in dispute, and had failed to substantiate it, representatives who had proved their title, were entitled to a declaration against Applicants.

The judge held that the power under Order XXV rule 5, was in wide and general terms and what was conferred was a discretion to be exercised according to the facts of each individual case.

Beyond the fact that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there were circumstances that called for their making, there was no legal restriction on the award of a declaration.

There had never been any unqualified rule of practice that forbade the making of a declaration even when some of the persons interested in the subject of the declaration were not before the court. Where, as here Applicants have decided to make themselves the champions of the rights of those not represented -the Obosi people- and had fought the case on that basis, and Where, as here, the trial judge took the view that the interested parties not represented were in reality fighting the suit, so to say from behind the hedge, there was no principle of law which disentitled the judge from making a declaration of title in respondent's favour - IBENEWEKA V. EBGUNA, (1964) 1 WLR 219; 108 Sol Jo. 114 P. C.

On the claim and counter claim I must quickly say:

The 1st relief in the counter claim is that the court was invited to sit in its civil jurisdiction to make orders outlawing criminal investigation. That cannot be correct. The court was invited to affirm that which the 2nd defendant proposes was ordered ultra vires the 2nd defendant and was also declared unconstitutional, null and void. In other words the plaintiff seeks a declaration from the court for affirmation of its orders in suit no. FHC/PH/CS/78/07.

On the 2nd relief, I hold the judgment is a judgment in rem and is against the entire world. Indeed not only Odili in so far as the 2nd defendant was a party to the decision of 20/3/07 which nullified the purported investigation of December 2006/ January 2007 anybody that is being indicted on the basis of that nullified investigation can benefit from that decision against the 2nd Defendant who was a party and who was restrained from or purporting to act or put into use the nullified steps the 2nd Defendant took.

The 3rd relief sought by the 2nd Defendant is the re-affirmation and confirmation of the intent and purpose of the judgment as it affects the 2nd defendant i.e. that it is now taking steps to have the judgment set aside. In this regard the court will say no more than it is the constitutional right of the 2nd defendant to seek to set aside the decision of 20/3/07 but not to seek to ignore it or rely on its actions and omissions that were held ultra vires, unconstitutional and nullified.

The 4th relief sought by the Plaintiff are not ultra vires the jurisdiction of this court in the light of the subsisting judgment in suit no. FHC/PH/CS/78/07.

Having made findings that plaintiffs reliefs are competent, it follows that the award of counter claim in the sum of N1bn has no legs to stand. It is a claim that is incompetent in law by the 2nd defendant and without any basis. I am not surprised that the 2nd defendant counter claimant did not address the court on its counterclaim which in law is a different claim from the claim of the Plaintiffs.

The plaintiff's claims contained in the summons are competent and do not constitute or amount to an abuse of the court process. In sum the counter claim lacks merit, it is bound to fail. It has failed. Be and it is hereby dismissed.

In the final analysis, the case of the plaintiff has merit. It succeeds and I grant the reliefs sought and for the avoidance of doubt I make the following orders:

a. In the light of the final and subsisting judgment of the Federal High Court in Suit No. FHC/PH/CS/78/2007; a declaration that the Defendant cannot arrest, detain, arraign and/or prosecute the Plaintiff on the basis of its alleged investigations conducted into the affairs of Rivers State between 29th May 1999 and 29th May 2007, is here by made.

b. In view of judgment in Suit No. FHC/PH/CS/78/07, a declaration that the purported Findings of the investigation team of the 2nd Defendant into the activities of the Rivers State Government between the period of 29th May 1999 and 29th May 2007, the said investigation being subject-matter of a suit FHC/PH/CS/78/07, are invalid, unlawful, unconstitutional, null and void.

c. In the light of the judgment in Suit No. FHC/PH/CS/78/2007 an order of this court restraining the Defendants, jointly and severally from arresting, detaining, arraigning and/or prosecuting the Plaintiff in any court pursuant to any purported investigations by the 2nd Defendant which investigation is the subject of the aforesaid suit is also hereby made.

d. In view of the subsisting valid judgment of this court delivered on 20/3/07, an order of perpetual injunction restraining the Defendants, jointly and severally from disseminating, publishing, circulating or distributing the report of the alleged investigation conducted by the 2nd Defendant into the activities of the Rivers State Government under the tenure of the Plaintiff, which said investigation, is nullified in Suit No. FHC/PH/CS/78/07 is also hereby made.

I am done. So be it.

HON. JUSTICE I. N. BUBA JUDGE

Judgment read and delivered in open Court.

Parties absent.

Mr. IA Adedipe,SAN, with him are Ms D. West, U. Oyaghira, E. Ime, B. Fasuyi, O. Mgbakoba and D. Konya for the Plaintiff

Mr. James Binang with him Mr. G. O. Edobor, Miss O.T. Oji, Mrs. A. Akinshola and I.A. Arogha for the 2nd Defendant

No order as to cost.

Unambiguous legal position

The Attorney-General of the Federation was the first defendant in this second case.

Despite the clear and unambiguous legal position on the matter, EFCC leadership under Farida Waziri from time to time made disparaging and libellous comments on the Odili case. Appropriate responses will be made to these and other similar comments at the right time.

Clearly I have been unfairly judged by columnists and commentators who out of intellectual laziness and based on baseless comments by EFCC (under Farida Waziri) without facts, evidence and in abject contravention of court orders had made statements that were clearly libellous.

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