ENYIME & ANOR v. COP BENUE STATE & ANOR (2020)

ENYIME & ANOR v. COP BENUE STATE & ANOR

(2020)LCN/14476(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/112C/2012

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. MOSES ENYIME 2. SUNDAY TARNONGO APPELANT(S)

And

1. THE COMMISSIONER OF POLICE BENUE STATE 2. C.G.C NIGERIA LTD RESPONDENT(S)

RATIO

MODE OF COMMENCEMENT OF AN APPLICATION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHT

Order 2 Rule 2 of the FREPR provides for the mode of commencement of an application for the enforcement of fundamental right as follows:
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
Order 1 of the Benue State High Court (Civil Procedure) Rules, 2007, defines “originating process” as any Court process by which a Suit is initiated. Processes by which a suit may be initiated under the said Rules include writ of summons and originating summons. Thus, by the FREPR and by the Rules of the lower Court, the originating summons procedure being one of such originating processes accepted by the High Court of Benue State, an applicant could seek to enforce his fundamental right by originating summons. See also:Saude v. Abdullahi (1989) LPELR-3017(SC); Abdullahi & Ors v. Nigerian Army & Ors (2019) LPELR-46925(CA); NPF & Ors v. Omotosho & Ors (2018) LPELR-45778(CA). PER OTISI, J.C.A.

ENFORCEMENT OF FUNDAMENTAL RIGHTS

It is well settled that in an application to enforce fundamental rights, the main claim ought to be precisely that, enforcement of fundamental rights. An application to enforce fundamental rights presupposes that the fundamental rights of the applicant as guaranteed under Chapter IV of the 1999 Constitution, as amended, has been breached or is in danger of being breached. Where the complaint that the fundamental rights has been breached is merely an appendage or is ancillary to the main claim, then the action cannot take shelter under the FREPR. This position of the law, which is in line with the provisions of Order 9 (1)(ii) of the FREPR, has been well settled by a number of judicial pronouncements. I shall mention a few: Tukur v Government of Taraba State (1997) LPELR-3273(SC), (1997) NWLR (pt. 510) 549; Unilorin & Anor v. Oluwadare (2006) LPELR-3417(SC); Nwachukwu v. Nwachukwu & Anor (2018) LPELR-44696(SC); Emeka v. Okoroafor & Ors (2017) LPELR-41738(SC). PER OTISI, J.C.A.

THE NATURE OF ORIGINATING SUMMONS

The nature of originating summons has been very well pronounced in a number of legal authorities. National Bank of Nigeria & Anor v. Alakija & Anor (1978) LPELR-1949(SC) at page 17, the Supreme Court, per Eso, J.S.C., enunciated:
“In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable.”
The Apex Court, per Onnoghen JSC (as he then was) in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT. III) 18 (2007) LPELR-928(SC) at page 46, described its nature this way:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.
In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.”
Restating the settled nature of the originating summons procedure inSani v. Kogi State House of Assembly & Ors (2019) LPELR-46404(SC), the Apex Court, per Onnoghen, CJN, at pages 13 – 14 of the E-Report said:
“What type of action/case is Originating Summons Procedure best suited? I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC), this Court has this to say:
“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involve questions of law rather than issues of fact.” PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the High Court of Justice, Benue State, sitting at Makurdi, Coram J.M. Ijohor, J., in a ruling delivered on February 8, 2012 in Suit No MHC/1283/2011, wherein the application of the Appellants to enforce their fundamental rights was struck.

The facts leading to this appeal can be summarized thus: The Appellants, who were junior staff of the 2nd Respondent, were alleged to have been planning to steal cables from 2nd Respondent’s construction site at Otobi in Otukpo Local Government Area of Benue State. The 2nd Respondent through one Mr. Owuna K. Ajayi reported the alleged plan to the 1st Respondent who arrested the Appellants and locked them up under alleged inhumane conditions between 10/7/2011 and 12/7/2011 when the 2nd Respondent through its agents withdrew the matter without more. Upon resumption of duties, the Appellants’ entitlements were deducted by the 2nd Respondent for the period they were in detention. The Appellants through their Counsel wrote to the 2nd Respondent demanding for an apology for their detention and for

payment of their entitlements. When the 2nd Respondent did not respond, the Appellants instituted the suit in the lower Court.

The 2nd Respondent filed a preliminary objection against the suit, which was upheld by the lower Court upon which the Appellants’ suit was struck out for having been originated by a defective process. Dissatisfied with the ruling of the lower Court, the Appellants lodged the instant appeal by Notice of Appeal filed on 7/3/2012 on four grounds of appeal.

The Appellants and the 2nd Respondent filed Briefs of Argument on 25/7/2012 and 31/8/2012. The 1st Respondent filed no Brief. At the hearing of the appeal on 1/6/2020, all the parties and their respective Counsel were absent. The Appellants had been served with Hearing Notice through their Counsel, S.B. Luga, Esq. on 27/5/2020. The 1st Respondent was served with Hearing Notice through Counsel, Friday Agwu, Esq. on 27/5/2020, while the 2nd Respondent was also served with Hearing Notice through Counsel, O.N. Ayia, Esq. on 27/5/2020. Being satisfied that the parties had due notice of the hearing of the appeal, the Court proceeded to deem the appeal duly argued on the

Briefs of the Appellants and 2nd Respondent, pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

The Appellants distilled three issues for determination of this appeal from four grounds of appeal, as follows:
1. Whether the learned trial judge was right to have struck out the appellants’ application upon the grounds that it was contentious, highly controversial and defective.
2. Whether the mode of commencing the matter at the trial Court was offensive in law.
3. Whether the Court of Appeal can uphold this appeal and grant all the reliefs sought there from.

The 2nd Respondent adopted the three issues formulated by the Appellants.

In their Brief, the Appellants indicated that Issue 1 was distilled from grounds 1 and 2 of the Grounds of Appeal; Issue 2 was distilled from grounds 3 and 4; while Issue 3 was distilled from all the grounds of appeal. Thus, the Appellants distilled Issue 3 from the same grounds of appeal that Issues 1 and 2 were formulated from. This is not permissible. I consider it to be a well settled and elementary rule grounding appellate jurisdiction that one issue cannot be tied to more than

one ground of appeal; Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; Yusuf & Ors v. Akindipe & Ors (2000) LPELR-3532(SC); Duwin Pharmaceutical and Chemical Co. Ltd v. Beneks Pharmaceutical and Cosmetics Ltd & Ors (2008) LPELR-974(SC); Joseph Bille v. The State (2016) LPELR-40832(SC); State v. Omoyele (2016) LPELR-40842(SC). Issue 3, which also was formulated from the same grounds as Issues 1 and 2, is in violation of this established principle. I shall therefore strike out Issue 3 for being incompetent. This appeal shall be determined on the basis of Issues 1 and 2. The Issues being interrelated, shall be resolved together.

Issues 1 and 2
The trial Court had struck out the application of the Appellants to enforce their fundamental rights by way of Originating Summons on the ground that the issue in controversy was contentious and highly controversial and ought not be heard and determined on the originating summons procedure. In contending that the decision of the trial Court was wrong, the Appellants submitted the law is well settled that credible evidence which had not been controverted should be acted upon, relying on

Lawson v Afani Continental Co. Ltd (2002) FWLR (PT 109) 1736 at 1740. It was posited that the learned trial Judge having perused the affidavit evidence of the parties failed to advert his mind to the fact that the Respondents admitted in their counter affidavits the facts surrounding the arrest and detention complained about. Counsel postulated that the trial Court ought to have acted on the averments of facts stated in the affidavits. Reliance was placed onOlojede v. Olaleye (2010) ALL FWLR (PT. 551) 1503 at 1513. It was further submitted, assuming without conceding, that there was controversy or contentions in the affidavit evidence of the parties, the proper procedure for the trial Court to have adopted would have been to call for oral evidence to resolve the controversies and not to have out rightly struck out the entire application.

Counsel pointed out that the learned trial Judge had already found that the originating process, which was the originating summons procedure, was not in itself wrong to commence an action to enforce fundamental rights. He then posited that since the originating process clearly depicted the complaint of infringement on the right of the

Appellants, the learned trial Judge erred in law to have struck out the application without considering its merit thereof. The Court was urged to uphold the arguments for the Appellants.

For the 2nd Respondent it was submitted that the Appellants application for the enforcement of their fundamental rights was contentious and the trial Court was right to have dismissed the same. Counsel for 2nd Respondent referred to the facts in issue therein which were in contention and required some explanations. It was argued that it was wrong for Appellants to have combined contentious issues with non-contentious issues in an application for the enforcement of fundamental rights. There was no issue relating to fundamental rights in the payment of employee’s wages or non-deduction of an employee’s wages, as contended by the Appellants. The Court was urged to dismiss the appeal relying on Order IX Rule 1 (ii) of Fundamental Rights (Enforcement procedure) Rules, 2009 (FREPR). The decisions in Essien v Inyang (2012) ALL FWLR (Pt. 628) 951 at 967 was also cited and relied on. It was submitted that the decision in the case of Lawson v Afani Continental Co. Ltd

(supra) relied on by the Appellants would operate where the affidavit evidence is cogent and reliable, and the trial Court would have no other alternative but to rely upon the same, which was not the case herein. The main grouse of Applicants against 2nd Respondent was that the Appellants were reported to the police which led to their arrest and detention. It was posited that a citizen who lodges a case with the police does not on that score without more culpable, relying on Fajemirokun v CBN (2009)37 NSCQR 1 at 11; Bassey v Afia (2010) ALL FWLR (Pt 531) 1477 at 1500-1501. The Court was urged to hold that the averments in Appellants’ affidavit did not prove the culpability of 2nd Respondent to ground an action under Fundamental Rights (Enforcement Procedure) Rules. It was further submitted that in order to succeed, the Appellants must show that 2nd Respondent participated actively in securing the arrest and detention of the Appellants, which they failed to do.

The Court was urged to note that that the trial Court pointed out the defect in Appellants’ application before proceeding to strike it out. The Court was urged to hold that the

affidavit evidence before the lower Court did not disclose any cause of action against the 1st or 2nd Respondents nor any case within the provisions of the Fundamental Rights Enforcement procedure) Rules, 2009 and to dismiss the appeal.

Resolution
Order 2 Rule 2 of the FREPR provides for the mode of commencement of an application for the enforcement of fundamental right as follows:
2. An application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
Order 1 of the Benue State High Court (Civil Procedure) Rules, 2007, defines “originating process” as any Court process by which a Suit is initiated. Processes by which a suit may be initiated under the said Rules include writ of summons and originating summons. Thus, by the FREPR and by the Rules of the lower Court, the originating summons procedure being one of such originating processes accepted by the High Court of Benue State, an applicant could seek to enforce his fundamental right by originating summons. See also:Saude v. Abdullahi (1989)

LPELR-3017(SC); Abdullahi & Ors v. Nigerian Army & Ors (2019) LPELR-46925(CA); NPF & Ors v. Omotosho & Ors (2018) LPELR-45778(CA). This point was not in issue as the learned trial Judge rightly held that an application to enforce fundamental rights may be commenced by originating summons, adding that this would be acceptable if the facts were not likely to be in dispute. I shall return to this point.
In addition to settling on the originating process to adopt, there are two other questions that need to be considered. First, the grievances to be addressed and resolved by the trial Court need to be centred on the enforcement of fundamental rights as constitutionally guaranteed and within the purview of Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Second, the originating process procedure adopted by the applicant must be one whereby the issues in controversy can be properly ventilated and resolved judiciously.

The Appellants by originating summons sought determination of the following questions:
1. Whether or not the arrest, detention and inhuman and degrading treatment of the Applicants

by officers and men of the 1st Respondent upon the instigation of the 2nd Respondent, is a breach of their fundamental human rights to personal liberty and right against inhuman and degrading treatment as guaranteed under Sections 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Article 6 of the African Charter on Human and Peoples Rights.
2. Whether or not the 2nd Respondent is in breach of Article 18 of the Condition of Service of Junior Staff (2010) of the 2nd Respondent by the arbitrary deduction of the Applicants’ entitlements.

If the above questions were resolved in favour of the Appellant, the Appellant sought the following reliefs against the Respondents, jointly and severally: –
1. A DECLARATION that the arrest, detention and inhuman and degrading treatment meted out against the Applicants by agents of the 1st Respondent upon the instigation of the 2nd Respondent is unreasonable, illegal, oppressive, unjustifiable and consequently a breach of their fundamental rights to personal liberty and right against inhuman and degrading treatment.
2. A DECLARATION THAT the arbitrary deduction and

retention of the salaries/entitlements of the Applicants by the 2nd Respondent is against the letter and spirit of Article 18 of the Conditions of Service of Junior Staff (2010) of the 2nd Respondent and as such is illegal, null and void and of no effect whatsoever.
3. AN ORDER directing the Respondents to jointly and severally pay to each of the Applicants the sum of N50,000,000 (Fifty Million Naira) as damages for their unlawful arrest, detention and inhuman and degrading treatment by agents of the 1st Respondent upon the instigation of the 2nd Respondent.
4. AN ORDER directing the 2nd Respondent to immediately refund the sums of N723.00, and N5,160.00 to the 1st and 2nd Applicants respectively, being the arbitrary deductions made on their salaries/entitlements and still retained by the 2nd Respondent.
5. AN ORDER directing the Respondents to publish an apology to the Applicants in a National Daily for their unlawful arrest, detention and inhuman treatment.
6. AN ORDER of perpetual injunction restraining the respondents, their agents, servants, privies or assigns from further unlawfully arresting, detaining and or subjecting the

plaintiffs to inhuman and degrading treatment.
7. AND FOR such further or other orders as this Honorable Court may deem fit to make in the circumstances of the case.

The Appellants deposed to affidavits in support of the Originating Summons. In his affidavit, the 1st Appellant deposed in paragraphs 12 and 13, page 5 of the Record of Appeal:
12. That upon our release I was dismayed that the 2nd Respondent deducted my two days salary in the sum of N723.00 for the month of July on the ground that I had not gone to work for two days, being the days, I was in detention at the 2nd Respondent’s behest.
13. That the said deductions were not made in line with the conditions of service handed over to me by the 2nd Respondent. A copy of the said Conditions of Service is hereby attached and marked as exhibit “S.B1”. The 2nd Respondent is hereby put on notice produce the original copy.

The 2nd Appellant deposed in paragraphs 13 of his affidavit in support of Originating Summons, page 9 of the Record of Appeal, thus:
12. That upon our release I was dismayed that the 2nd Respondent deducted my twenty hours overtime

pay in the sum of N5,160.00 on the ground that I had not gone to work for two days, being the days I was in detention at the 2nd Respondent’s behest.
13. That the said deductions were not made in line with the conditions of service handed over to me by the 2nd Respondent. A copy of the said Conditions of Service is hereby attached and marked as exhibit “S.B1”. The 2nd Respondent is hereby put on notice produce the original copy.

The Appellants made other depositions detailing their arrest and the alleged inhumane treatment meted out to them by the 1st Respondent on the report of the 2nd Respondent.

None of the allegations of the Appellants was admitted by either of the Respondents. The 1st Respondent deposed to a Counter Affidavit, pages 57 – 59 of the Record of Appeal. The 2nd Respondent filed a motion on notice seeking leave to file a notice of preliminary objection and their counter affidavit, pages 66-67 of the Record of Appeal. In paragraph 19 of their Counter Affidavit, the 2nd Respondent deposed, page 78 of the Record of Appeal:
That the 2nd Respondent did not deduct N723.00 and N5,160.00 respectively from

Applicants earnings nor from any of the other staff and they are all paid through their bankers of United Bank for Africa, Otukpo.

The Appellants deposed to a Joint Further Affidavit in which they denied that they were paid through United Bank for Africa, Otukpo, as they had no account therein, pages 79 – 80 of the Record of Appeal.

Unilorin & Anor v. Oluwadare (2006) LPELR-3417(SC); Nwachukwu v. Nwachukwu & Anor (2018) LPELR-44696(SC); Emeka v. Okoroafor & Ors (2017) LPELR-41738(SC).

A determination of whether or not the 2nd Respondent had actually deducted arbitrarily the entitlements of the Appellants and whether such deductions were in breach of Article 18 of the Condition of Service of Junior Staff (2010) of the 2nd Respondent were not matters that fall within the purview of fundamental rights enforcement. Conditions of Service govern the relationship between an employer and its employee. They are contractual by nature. A complaint that there has been a breach of the conditions of service by an employer has to be proved by the employee who so asserts; Federal Mortgage Finance Ltd v Ekpo (2003) LPELR-5627(CA); NITEL v Ugbe (2001) LPELR-5970(CA); Dekom v JSC, Plateau State (2010) LPELR-4031(CA). An alleged breach of conditions of service by an employer is not a fundamental right falling within the scope of Chapter IV of the 1999 Constitution, as amended. Such claim must therefore be pursued separately.

The question now is whether the originating summons procedure elected by

the Appellants was ideal in the instant suit.
The nature of originating summons has been very well pronounced in a number of legal authorities. National Bank of Nigeria & Anor v. Alakija & Anor (1978) LPELR-1949(SC) at page 17, the Supreme Court, per Eso, J.S.C., enunciated:
“In other words, it is our considered view that originating summons should only be applicable in such circumstances as where there is no dispute on questions of fact or the likelihood of such dispute. Where, for instance, the issue is to determine short questions of construction, and not matters of such controversy that the justice of the case would demand the settling of pleadings, originating summons could be applicable.”
The Apex Court, per Onnoghen JSC (as he then was) in Dapianlong v. Dariye (2007) 8 MJSC 140, (2007) 4 S.C. (PT. III) 18 (2007) LPELR-928(SC) at page 46, described its nature this way:
“The originating summons procedure is a means of commencement of action adopted in cases where the facts are not in dispute or there is no likelihood, of their being in dispute and when the sole or principal question in issue is or is likely to be

one directed at the construction of a written law, Constitution or any instrument or of any deed, will, contract or other document or other question of law or in a circumstance where there is not likely to be any dispute as to the facts. In general terms, it is used for non-contentious actions or matters i.e. those actions where facts are not likely to be in dispute.
In actions commenced by originating summons, pleadings are not required rather affidavit evidence are employed: See Director, State Security Service v. Agbakoba (1999) 3 NWLR (Pt. 595) 314; Din v. A-G of the Federation (1986) 1 NWLR (Pt. 17) 471; Keyamo v. House of Assembly Lagos State & Ors (2002) 18 NWLR (Pt. 799) 605.”
Restating the settled nature of the originating summons procedure inSani v. Kogi State House of Assembly & Ors (2019) LPELR-46404(SC), the Apex Court, per Onnoghen, CJN, at pages 13 – 14 of the E-Report said:
“What type of action/case is Originating Summons Procedure best suited? I will commence by throwing more light on an Originating Summons Process. In the case of Hussaini Isa Zakirai vs. Salisu Dan Azumi Muhammad & Ors (2017) LPELR –

42349 (SC), this Court has this to say:
“In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on affidavit evidence and involve questions of law rather than issues of fact.”
By the above proposition, Originating Summons is best suited for cases where there are no substantial disputes of facts or likelihood of facts. In the case of Standard Cleaning Services Company vs. The Council of Obafemi Awolowo University, Ile lfe (2011) 14 NWLR (pt. 1269) 193 at 204 – 205 213 the Court held that:
“Originating Summons should only be applicable in circumstances where there is no dispute on the question of facts or even the likelihood of such dispute. Application for initiating contentious issues of facts where the facts of the plaintiff leave matter for conjecture, Originating Summons is not appropriate procedure. Where it is obvious from the state of the affidavit that there would be an air of friction in the proceedings. then an Originating Summons is not appropriate. Originating Summons should be used only where the

proceeding involves question of law, rather than disputed facts, even where the facts are not in dispute, the Originating Summons should not be used, if the proceedings are hostile.”
See also:Titilayo Plastic Industries Ltd & Ors v. Fagbola (2019) LPELR-47606(SC); Alfa v Attai & Ors (2017) LPELR-42579(SC); Zakirai v. Muhammad & Ors (2017) LPELR-42349(SC); Inakoju v Adeleke (2007) 2 MJSC 1; FGN v Zebra Energy (Nig.) Limited (2003) 1 MJSC 3; Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852) 453; (2003) LPELR-1239(SC) at pages 12-13; Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA).
The originating summons procedure is one that admits of only affidavit evidence. It is therefore well settled that in actions where there is likely to be substantial dispute of facts, or, where the relief or reliefs sought by a claimant are declaratory in nature, the originating summons procedure, which admits of only affidavit evidence, ought not to be employed. The facts being in dispute, the action must be brought by writ of summons, which would permit oral evidence. Indeed, it is in accord with

justice to postulate that where the complaint of the plaintiff makes allegations against a defendant, oral evidence is required. Oral evidence would provide opportunity for the defendant to cross-examine witnesses testifying against him and also to testify in his defence.
It is important to note that it is not the filing of a counter affidavit per se that determines whether or not facts are in dispute. In Ossai v Wakwah (2006) 4 NWLR (Pt.969) 208 at 229, (2006) LPELR-2813 (SC) at page 19, (2006) 2 SC (Pt.1) 19, the Supreme Court, per Mohammed JSC (as he then was) unequivocally put it this way:
“It must be emphasized that it is not the filing of a counter-affidavit to oppose claims in an originating summons that makes such proceedings contentious or result in disputed facts. Even where no counter-affidavit was filed or where counter-affidavit was filed but ignored by the trial Court, as in the lost out case, the nature of the claims and the facts deposed in the affidavit in support of the claims in the originating summons are enough to disclose disputed facts and hostile nature of the proceedings.”
Therefore, it is the nature of the claim and

the facts deposed in the affidavit in support that would reveal whether the proceedings could be described as hostile; Alaibe v PDP& Ors (2020) LPELR-49597(CA).
Now, without even looking at the respective Counter Affidavits of the 1st Respondent and 2nd Respondent, it is very obvious that the depositions of the Appellants reveal the hostile nature of the dispute. The Appellants have alleged that they were arrested and detained unlawfully in inhumane conditions. They also alleged that their entitlements were arbitrarily and wrongfully deducted in breach of their conditions of service. Clearly, even if the allegations regarding the unlawful arrest and detention could be resolved on affidavit evidence, I do not see how a Court of law can resolve the issue concerning arbitrary deductions contrary to the conditions of service and proceed to grant the declaration and order sought, particularly in paragraphs 2 and 4 of the Originating Summons, without the benefit of oral evidence that has passed through the crucible of cross examination. The burden of proving their allegations lay on the Appellants, who had even served a notice to produce the original copy

of the Conditions of Service on the 2nd Respondent in their affidavits in support of the originating summons. It is evident that affidavit evidence was certainly insufficient to resolve the issues in contention. It would be almost impossible to arrive at a fair and just determination of the contentions thrown up herein without the assistance of oral evidence.
The settled principle of law is that where depositions in the affidavit evidence of the parties are in conflict, the Court seised of the matter must resolve the conflict by calling oral evidence; Falobi v. Falobi (1976) LPELR-1236(SC); Ugwu & Ors v. PDP & Ors (2015) LPELR-24352(SC). An aggrieved litigant should not employ originating summons as a procedure to ventilate grievances which are in dispute. Indeed, judicial pronouncements have always emphasized that the originating summons procedure is not the appropriate procedure to employ in determining hostile proceedings in which facts are in dispute;Eze v. University of Jos (2017) LPELR-42345(SC); Amasike v The Registrar, Corporate Affairs Commission (2010) 13 NWLR (PT.1211) 337 S.C; Ezeigwe v Nwawulu (2010) 4 NWLR (PT 1183) 159 S.C.;

Agbakoba v INEC (2008) 18 NWLR (PT.1119) 489 S.C. Therefore, without much ado, I would agree with the learned trial Judge that in the light of these disputations, the originating summons procedure was a defective procedure to engage.

The trial Judge further held, page 100 of the Record of Appeal:
“Now the main issue for determination is whether or not the arrest, detention and inhuman and degrading treatment of the applicants by officers and men of the 1st respondent upon the instigation of the 2nd respondent is a breach of their fundamental rights to personal liberty and right against inhuman and degrading treatment.
The respondents’ response to this issue is that the police arrested the applicants upon reasonable suspicion of committing criminal conspiracy attempt to commit theft. The grounds for the reasonable suspicion of the applicants being that the complainant, Mr. Owuna Kennedy Ajayi, reported to the Nigeria Police Divisional Headquarters Otukpo and a list containing names including that of the two applicants submitted to the police for arrest in connection with the case.
To my mind, the above identified issue is

contentious and highly controversial and ought not to be entertained, heard and determined under the originating summons procedure…
Since the mode of commencement of this present application is defective, I have no option but to strike it out…”

I note that the finding of the learned trial Judge appears to be hinged on the issue identified in the address of Counsel rather than on the affidavit evidence. In my considered view, however, there is no gainsaying the fact that the Appellant commenced this action by a procedure that does not permit a comprehensive ventilation of the matters in controversy in order to ensure justice for all the parties. The declarations and orders sought by the Appellant arising from the issues thrown up by the affidavit evidence of the parties cannot fairly be determined without recourse to oral evidence which is tested by cross examination.

The general principle of law is that where there is conflicting affidavit evidence, such as in an originating summons procedure, the trial Court should call for oral evidence. The trial Court ought to order pleadings in order for the parties to lead evidence to

resolve such conflicts; Daniel & Anor v. Ayala & Anor (2019) LPELR-49344(SC); Chairman National Population Commission v. Chairman, Ikere Local Govt & Ors (2001) LPELR-3166(SC). I am of the firm view that this was the course that ought to have been adopted by the trial Court. I agree with the Appellants’ Counsel that the learned trial Judge ought to have called for oral evidence to resolve the conflicting affidavit evidence, rather than outrightly striking out the Appellants’ suit. In this light, the Issues 1 and 2 are resolved in part in favour of the Appellants.

This appeal therefore succeeds in part. The ruling of the lower Court delivered on 8/2/2012 in Suit No MHC/1283/2011 is hereby set aside. It is further ordered that the matter be and is hereby remitted back to the Honourable Chief Judge of Benue State for the matter to be heard and determined on the merits, by another Judge of the Benue State High Court, upon the parties filing pleadings.
It is further ordered that parties are to bear their costs.

ADAMU JAURO, J.C.A.: I was afforded a copy of the judgment just delivered by my learned brother ONYEKACHI AJA

OTISI, JCA. Having perused the said judgment, I am at one with the reasoning and conclusions contained therein to the effect that issues 1 and 2 are resolved in part in favour of the appellant.

I adopt the judgment as mine, in allowing the appeal in part. I abide by all consequential orders made in the judgment.

JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in allowing the appeal. I abide by the consequential orders made in the lead judgment.

Appearances:

The Appellants were served with Hearing Notice through Counsel, S.B. Luga, Esq., but were absent and not represented For Appellant(s)

The 1st Respondent was served with Hearing Notice through Counsel, Friday Agwu, Esq., but was absent and not represented

The 2nd Respondent was served with Hearing Notice through Counsel, O. N. Ayia, Esq., but was absent and not represented For Respondent(s)