AMADI-WALI v. PHEDC (2021)

AMADI-WALI v. PHEDC

(2021)LCN/15173(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 10, 2021

CA/PH/FHR/569/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

UGOCHUKWU AMADI-WALI APPELANT(S)

And

PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY RESPONDENT(S)

RATIO

WHETHER OR NOT THE QUESTION OF FUNDAMENTAL RIGHTS IS A QUESTION OF FACT THAT DOES NOT DEPEND SO MUCH ON SUBMISSIONS FROM THE COUNSEL

The question of infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of learned counsel on the law. It is fact based. So it is the facts of the matter as disclosed in the processes filed that are examined, analysed and evaluated, to see if the fundamental rights of the Appellant were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains rudimentary that he who asserts must prove, so the Appellant had the onus of proving by credible affidavit evidence that his fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536 and ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 20-22. PER OGAKWU, J.C.A.

WHETHER OR NOT THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO IS THE PRIMARY DUTY OF THE TRIAL COURT

Now, it is settled law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. The attitude of an appellate Court in respect of evaluation of evidence by a trial Court is that in deciding whether or not the trial Court properly evaluated the evidence, the essential focus is on whether the trial Court made proper findings and reached the correct judgment upon the facts before it. Put differently, the duty of the appellate Court is to go into the evidence evaluated by the trial Court to see whether there is any perversity in the findings. It is abecedarian that where a trial Court has carried out its assignment satisfactorily, an appellate Court should be left with no option but to affirm such a decision. See generally AIYEOLA vs. PEDRO (2014) LPELR (22915) 1 at 37, NNADOZIE vs. MBAGWU (2008) LPELR (2055) 1 at 27 and ANYEGWU vs. ONUCHE (2009) LPELR (521) 1 at 13. PER OGAKWU, J.C.A.

WHETHER OR NOT THE QUESTION OF INFRINGEMENT OF FUNDAMENTAL RIGHTS IS A QUESTION OF FACTS

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant is a bailiff in the High Court of Rivers State. Premised on his contention that the Respondent infringed his fundamental rights when he went to serve Court processes at the premises of the Respondent, he instituted proceedings before the High Court of Rivers State for the enforcement of his fundamental rights in SUIT NO. PHC/3507/2018: MR. UGOCHUKWU AMADI-WALI vs. PORT HARCOURT ELECTRICITY DISTRIBUTION COMPANY. The Appellant claimed the following reliefs:
“i. A Declaration that the torture, intimidation, mal-handling, beating and detention of the applicant by members of staff of the Respondent on 19th April, 2017, within the Respondent’s premises at No. 1 Moscow Road, Port Harcourt is unlawful, illegal and a gross violation of the applicant’s fundamental rights of dignity to human person and personal liberty as enshrined in Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
ii. N1, 000,000 Special Damages.
Particulars of Special Damages:

(a) Solicitors Fee N1, 000,000.
iii. N10, 000,000 General Damages against the Respondent for the physical and psychological trauma, embarrassment and violation of the Applicant’s fundamental rights.
iv. An Order mandating the Respondent to publish an unreserved apology to the applicant in two National Dailies circulated in Port Harcourt.
v. 10% interest on the judgment sum from the date of judgment till final liquidation.”

The ground on which the Appellant sought the said reliefs is as follows:
“The bravado manner and crass irresponsibility of the Respondent who locked up the applicant while he was in the course of his employment as a bailiff of this Honourable Court and the beating, torture and degrading treatments meted out on him by the Respondent on 19th April, 2017 constitutes a flagrant violation of Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”

The matter was heard on the affidavit evidence filed and exchanged by the parties and in its judgment which was delivered on 22nd May 2019, the lower Court dismissed the Appellant’s action. The judgment of the lower Court is at

pages 73-76 of the Records. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on 19th August 2019. The Notice of Appeal is at pages 77-81 of the Records.

In prosecution of the appeal, the Records of Appeal were compiled and transmitted on 15th November 2019 and the Appellant filed his brief of argument on 30th December 2019. The Respondent failed to file any brief of argument and also did not attend Court at the hearing of the appeal. The appeal was consequently heard on the Appellant’s brief alone, with learned counsel for the Appellant urging the Court to allow the appeal.

Let me hasten to state that though the Respondent failed to file a brief, the appeal must and will still be considered on the merits. The effect of the failure by the Respondent to file a brief is that the Respondent is deemed to have admitted the truth of the facts stated in the Appellant’s Briefs, in so far as the said facts are borne out by the Record of Appeal. The Appellant still has to succeed or fail on the strength of his case. In the words of Ogbuagu, JSC in UNITY BANK PLC vs. BOUARI (2008)

LPELR (3411) 1 at 24-25:
“…the failure of a Respondent to file a reply brief is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant must succeed or fail on his own brief.”
See also ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 17 and ULEKE vs. KAKWA (2013) LPELR (20819) 1 at 7-8.

The Appellant distilled a sole issue for determination in the appeal, namely:
“Whether, having regards to the totality of the affidavit evidence adduced by the parties in this case, the decision of the lower Court dismissing the Appellant’s application for the enforcement of his fundamental rights is justified in law? (Grounds 1,2,3,4 and 5)”

The above issue formulated by the Appellant strikes at the core of the disceptation in this appeal. Accordingly, it is on the basis of the said issue that I will presently review the

submissions of the Appellant’s counsel and then resolve this appeal.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the affidavit evidence did not justify or support the decisions of the lower Court and that the lower Court was therefore wrong to dismiss the Appellant’s action. It was contended that the lower Court acted on facts that were not before it, when it held that the Respondent was a reputable and robust establishment and thereby, put the enormous burden on the Appellant to establish that the Respondent as a reputable establishment acted in an irresponsible manner.

It was opined that whether the Respondent is a reputable establishment is not a matter which a Court can take judicial notice of, more so, when the Respondent gave contradictory evidence on whether the Appellant visited its premises and can therefore not be honoured with any credibility or be treated as truthful. The cases of EZEMBA vs. IBENEME (2004) 14 NWLR (PT 894) 617 at 654 and ODUNLAMI vs. NIGERIA NAVY (2013) 12 NWLR (PT 1367) 20 at 53 were referred to.

It was maintained that since the Respondent had given contradictory

evidence, the only option open to the lower Court was to reject the Respondent’s entire evidence since it cannot pick and choose which of the conflicting versions to follow vide ZAKIRAI vs. MUHAMMAD (2017) 17 NWLR (PT 1594) 181 at 243. It was asserted that in consequence, the Respondent did not adduce any credible evidence to controvert the Appellant’s evidence which therefore remained unchallenged, credible and proved the Appellant’s case on the balance of probabilities. The cases of MOGAJI vs. ODOFIN (1978) 3-4 SC 91 at 94 and EJOWHOMU vs. EDOK-ETER LTD (1986) 3 NWLR (PT 39) 1 were relied upon. It was conclusively posited that the affidavit evidence established that the Appellant was at the Respondent’s premises and that he was assaulted vide Exhibits UW4 and UW5 of the Appellant’s affidavit, as well as the affidavit evidence of the eyewitness. It was maintained that the Appellant proved by credible evidence that his fundamental rights were infringed.

RESOLUTION
The facts of this matter are not convoluted. Indeed, they are simple and straightforward. The salient facts of the matter as redacted by the lower Court at

pages 73-74 of the Records, based on the case made out by the parties, disclose that the Appellant’s case is that upon an order of Court for substituted service to serve processes in Suit No. PHC/201/2017 on an employee of the Respondent, the Appellant caused the process to be posted on the Respondent’s doorpost at No. 1 Moscow Road, Port Harcourt. The Respondent then ordered the Appellant to remove the process, got the process torn and thrown on the Appellant, beat him mercilessly and locked him up. The Appellant claimed that he was so brutalised that he could barely eat or walk for 5 days and he received medical treatment at the Braithwaithe Memorial Specialist Hospital, Port Harcourt and incurred expenses.

On the other hand, the Respondent’s case is that on 19th April, 2017, the Appellant pasted Court processes at its premises and was accosted by the security personnel on duty who enquired why he pasted the said Court process. That the Appellant was said to have yelled at the Respondent that “nobody has the power to question his authority because he works for the Court.” That the Appellant also refused to endorse the

visitor’s notebook and left the Respondent’s premises unhindered on his own will and was not assaulted. It is further the Respondent’s case that on his way out, the Appellant issued threats on the Respondent for daring to challenge his authority.

With due deference to learned counsel, the pertinent question for consideration is not whether the Appellant was at the Respondent’s premises on the fateful day, rather it is whether the Appellant established, on the affidavit evidence, that he was beaten, tortured and subjected to degrading treatment as a result of which his fundamental rights to dignity of human person and personal liberty as enshrined in Sections 34 and 35 of the 1999 Constitution (as amended) were eviscerated.

Nigeria has adopted the precepts of constitutionalism; the rule of law is the lodestar for all authorities, persons and institutions under our constitutional democracy. Fundamental rights are rights which stand above the ordinary laws of the land. They are in fact antecedent to the political society itself. Fundamental rights, which have been described as the minimum living standard for civilized humanity

have their origin dating back to the Magna Carta, the Royal Charter of political rights given to rebellious English Barons by King John on June 19, 1215. They are rights which embrace and encompass the concepts of liberty and justice. The fundamental rights have been enshrined in the Constitution so that the rights can be inalienable and immutable to the extent of the non-immutability of the Constitution itself. See RANSOME KUTI vs. A-G FEDERATION (1985) 7 NWLR (PT 6) 211 at 229-231. It is the fact of the enshrinement of these fundamental rights in the Constitution that confers the fundamental rights the status of being over and above other human rights: UZOUKWU vs. EZEONU II (1991) 6 NWLR (PT 200) 708 at 761.

constitutional and other provisions on the fundamental rights of an individual. The law remains rudimentary that he who asserts must prove, so the Appellant had the onus of proving by credible affidavit evidence that his fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536 and ONWUAMADIKE vs. IGP (2018) LPELR (46039) 1 at 20-22.

It is important to underscore that bailiffs are officers of the Court and that any interference with the discharge of their duties is an interference with the due administration of justice, which a Court will not take lightly. The Appellant’s allegation is that he was assaulted when he went to serve Court processes at the premises of the Respondent. The Appellant, in his letter dated 19th April, 2017, the day of the alleged incident, and which is attached as Exhibit UW4 of the supporting affidavit, notified the Chief Registrar of the High Court of Rivers State of the alleged assault and pleaded thus:
“It is my humble plea that necessary actions should be taken against the Port-Harcourt Electricity Distribution Company, as the integrity of the Court is at stake. This would

also serve as a deterrent to others.”
(See page 13 of the Records)

It would appear that the High Court of Rivers State took no action as a result of which the Appellant instituted proceedings on 19th November 2018, about nineteen (19) months after the alleged incident, to enforce his fundamental rights. As I earlier stated a Court will not take lightly any interference with the due administration of justice, but I would refrain from speculating as to what may have informed the High Court of Rivers State not taking any action, if indeed, it had found the Appellant’s letter of complaint of assault credible.

Howbeit, the lower Court after evaluating the affidavit evidence of the parties held that the Appellant did not prove his case. Let me intercalate and state that the Appellant’s contention that the fact of the Respondent being a reputable and robust organisation is not a matter of which the lower Court can take judicial notice of, is a misunderstanding of what the lower Court stated. The lower Court at page 75 of the Records stated that it was taking judicial notice of the location of the Respondent’s office and its

proximity to the Civic Centre, Port Harcourt and the Police Headquarters; the lower Court did not take judicial notice that the Respondent was a reputable and robust establishment. No! I hasten to add that whether the lower Court could have taken judicial notice of the location of the Respondent’s office or not, does not impact on whether the Appellant, on the affidavits filed, discharged the burden of establishing that his fundamental rights were infringed.

Court should be left with no option but to affirm such a decision. See generally AIYEOLA vs. PEDRO (2014) LPELR (22915) 1 at 37, NNADOZIE vs. MBAGWU (2008) LPELR (2055) 1 at 27 and ANYEGWU vs. ONUCHE (2009) LPELR (521) 1 at 13.

The crux of the complaint in this matter arising from the issue distilled for determination is on the evaluation of evidence by the lower Court; with the Appellant contending that flowing from the affidavit evidence, the decision of the lower Court dismissing the Appellant’s case is not justified in law. It bears restating that the burden is on the Appellant to prove that his fundamental rights were breached; this burden remains on him to discharge irrespective of whether the Respondent filed any processes, or if the Appellant perceives that the Respondent’s affidavit evidence was contradictory. The law remains that the Appellant is to succeed on the strength of his case.

In evaluating the evidence, the lower Court stated as follows at pages 75-76 of the Records:
“The Applicant stated on exhibit UW4 that he got to the Respondent’s premises at about 11:19am on 19th April, 2019 to effect the service

in issue on the Respondent’s premises at No. 1 Moscow Road Port Harcourt.
Exhibit UW2 is the picture of the premises while UW3 is the photograph of the process posted on the Respondent’s entrance door. The Applicant stated that he did not enter inside the Respondent’s office/reception to require him to endorse the visitor’s book but merely posted the process on the entrance door and turned to leave before the security man accosted him and thereafter his assault ensued when he refused take back the process he posted.
I find the scenario a little bit incredible in that this Court can take judicial notice of the fact that No. 1 Moscow Road is the Headquarters of the Port Harcourt Electricity Distribution Company situate opposite the Civic Centre Port Harcourt and 1 minute walk to the Police Headquarters hence my mind was quite agitated that the staff of such a reputable and robust establishment will throw caution to the wind and act in such a barbaric manner over service of a Court process not only in broad day light but, before the public view.
My curiosity increased by the fact that there was no pictorial evidence of the

alleged assault while it lasted or after the assault to substantiate the Applicant’s allegation especially as the Applicant and his pointer had camera/phones on them with which they earlier captured the posting of the process in issue as shown on exhibits UW2 and UW3.
More worrisome is the fact that at paragraph 4 of the Applicant’s exhibit UW4, the Applicant stated:
‘As I was about to leave the premises, they drew me back, once again asking me to go with it. I still refused to disobey the Court’s order. Mr. Preye Kalio ordered the security personal [sic] and other staff of the Company to lock the door, I was drawn back and beaten from different angles by all those present (staff)’.
Now after a critical examination of the Applicant’s exhibits UW2 and UW3, the nagging question that begs for an answer is; which door did Mr. Preye Kalio give Order to the security to lock since the Applicant by his deposition, did not enter inside the Respondent’s reception but remained outside as shown on exhibit UW2 and was already leaving the Respondent’s premises before the Security man noticed and accosted him. See

also paragraph 4 of the Applicant’s Further Affidavit where he reiterated that he did not enter inside the Respondent’s reception but posted the process at the entrance door.
I find the Applicant’s story rather absurd and difficult to believe in the absence of any tangible proof or other material placed before the Court to substantiate his allegations.
The law is settled that where facts averred is weak, tenuous, insufficient or feeble then it would amount to a case of failure of proof. See A.G. OF ANAMBRA STATE vs. A.G. FEDERATION (2015) ALL FWLR (PT. 266) 557 @ 1611, 1697 G-H.
The Applicant has not shown by his evidence before this Court that his right has been infringed upon and I hold that the Applicant has failed to prove his case.”

I have insightfully considered the affidavit evidence of the parties at pages 5-21 and 26-51 of Records and it cannot be disputed that the lower Court made the proper findings of facts and arrived at the correct decision. The findings made by the Court are not perverse and, in the circumstances, it would amount to a miscarriage of justice if this Court does not affirm the decision

of the lower Court.

Let me iterate that the question of infringement of fundamental rights is largely a question of facts. Where the facts do not bear out an infringement, no amount of construction of monuments of case law will change the position, since it is from the facts of a matter that the law is applied. The facts of the matter are the flesh engrafted onto the bare bones of the law. See ADEGOKE MOTORS vs. ADESANYA (1989) 5 SC 92.
The Appellant did not prove that his fundamental rights were eviscerated and the lower Court arrived at the correct decision when it dismissed the Appellant’s action. Accordingly, the sole issue for determination is resolved against the Appellant. The appeal is devoid of merit and it is hereby dismissed. The judgment of the lower Court, Coram Judice: Kingsley-Chuku, J. is hereby affirmed. There shall be no order as to costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have been privileged to have read before now the lead judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA. I agree his reasoning and conclusion that the appeal has no merit. I too dismiss the appeal.

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MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of previewing the lead judgment of my learned brother, Ugochukwu A. Ogakwu, JCA, just delivered.
I agree with the reasoning and conclusions arrived at and thereby dismissing the appeal as lacking in merit. I too dismiss the appeal for lack of merit.

Appearances:

A. Ichi, Esq. For Appellant(s)

…For Respondent(s)