HASSAN v. A.G. & COMMISSIONER FOR JUSTICE, KADUNA STATE & ANOR (2022)

HASSAN v. A.G. & COMMISSIONER FOR JUSTICE, KADUNA STATE & ANOR

(2022)LCN/16790(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/202/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

MUSA NJIMEN HASSAN APPELANT(S)

And

1. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, KADUNA STATE 2. COMMISSIONER OF POLICE, KADUNA STATE RESPONDENT(S)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST

The law is trite that a ground of appeal must relate to the ratio of the decision appealed against. In M.B.N Plc vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379 at 387 – 388, the Supreme Court held:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply be no appeal as what is set down as a ground of appeal is non-existent being no more than a figment of imagination of the appellant…” PER OWOADE, J.C.A.

THE CONSEQUENCES OF A GROUND OF APPEAL NOT ATTACKING A JUDGMENT APPEALED AGAINST

Also, in the case of Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 194, the Court of Appeal held thus:
“A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complainant on appeal.
In the instant case, the ground of appeal which dealt with the issue of the trial Court deciding the question of title to land in dispute did not arise from a determination of the trial Court and is therefore incompetent. Issue 7 formulated therefrom is also incompetent.”
See also Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 158, Bakule vs. Tanerewa (Nig) Ltd (1995) 2 NWLR (Pt. 308) 724 at 739 – 340, Fabiyi vs. Adeniyi (2000) 5 SC 31 at 42.
Indeed, an appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See Oredoyin vs. Arowolo (1989) 4 NWLR (Pt. 114) 172 SC, Babalola vs. State (1989) 4 NWLR (Pt. 115) 264 SC, Ngige vs. Obi (2006) 14 NWLR (Pt. 999) 1. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Kaduna State delivered on the 20th day of May, 2020 by Honourable Justice D. H. Khobo.

By a Motion on Notice 30-08-2019, accompanied with statement in support of the Application and affidavit in support under the Fundamental Rights (Enforcement Procedure) Rules the Appellant as Applicant moved the Court for the following declarations and reliefs:
“1. A DECLARATION that the continuous invitation of the Applicant by the Respondents under the guise of meetings over a purely civil matter pending at the High Court of Kaduna State in Suit No: KDH/KAD/546/2019 MUSA NJIMEN HASSAN VS THE GOVERNOR OF KADUNA STATE & 2 ORS is unconstitutional and constitute a likely infringement of the Applicant’s fundamental human rights as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria as amended and the African Charter on Human and Peoples Rights (Ratification Act).
2. A DECLARATION that the continuous invitation of the Applicant by the Respondents under the guise of meetings is putting the applicant in apprehension of the likely contravention of his fundamental human rights pursuant to Section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
3. AN ORDER OF PERPETUAL INJUNCTION restraining the Respondents either by themselves or by their agents, or servants from further inviting the Applicant to any purported meeting or invading the privacy of the applicant using policemen or security personnel of government in respect of any or all issues concerning or relating to the dispute between the applicant and the Governor of Kaduna State and 2 others in Suit No: KDH/KAD/546/2019, and from further intimidation, and harassment of the Applicant.
4. AN ORDER directing the respondents jointly and severally to pay the applicant the sum of Two Million Naira (N2,000,000:00) only each being exemplary/aggravated damages for the infringement of the Applicant’s Fundamental Human Rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and the African Charter of Human and Peoples Rights (Ratification Act).
5. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case.”

The Respondents filed a Counter-Affidavit to the Appellant’s claims.

In a considered judgment, the learned trial judge dismissed the Appellants/Applicant’s claims for the enforcement of his fundamental human rights. In coming to this conclusion, the learned trial judge held severally, but first at page 92 of records that:
“In cases of allegation of violation of fundamental human rights such as the instant case, the law is settled that mere allegation or deposition in an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant, the specific fact of the alleged breach must be proved in substantial details. See ADESANYA VS. F.R.N. & ANOR (1981) LPELR-147 P.63 paragraphs D-E and UDO & ORS VS. ESSIEN & ORS (2014) LPELR-22684 page 22 paragraphs A-F.”
Second, and in conclusion at pages 92 – 93 of records that:
“The law is trite, that where a Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence not by admission in pleadings of the defendant that he is entitled. The necessity for this arise from the fact that the Court has discretion to grant or refuse the declaration and the success of the claimant in such action depends entirely on the strength of his own case and not on the weakness of the defence. See BELLO VS EMEKA (1981) 1 SC 101, NASCO TOWN PLC VS NWABUEZE (2015) ALL FWLR (Pt. 780) 1209 at 1397 – 1398 paragraphs A – B.
In the instant case, the applicant has not in any way satisfy the legal requirement for proof in matters for declaratory reliefs to warrant the grant of the reliefs sought for in this application including award of exemplary aggravated damages. Thus I agree with the submissions of Mr. Chris Umar, learned Solicitor General of Kaduna State for the respondents and hereby find and hold that the applicant’s allegations in this application must fail as the applicant has not furnished this Court with cogent, credible and verifiable evidence to prove same.
Accordingly, the applicant’s application for the enforcement of his/her fundamental rights as moved before this Court by the learned counsel fails as same lacks merit and is hereby accordingly dismissed.”

Dissatisfied with this judgment, the Appellant at First filed a Notice of Appeal in this Court on 21-07-2020 but later and by leave of Court filed Appellant’s Amended Notice of Appeal which was deemed filed on 30-11-2021 on 21-09-2021.

The six (6) grounds of appeal in the Appellant’s Amended Notice of Appeal devoid of particulars are as follows:
GROUND 1:
The learned trial Judge erred in law when he held that:
“In cases of allegation of violation of fundamental rights such as the instant case, the law is settled that the allegation or deposition in an affidavit is not sufficient to constitute proof of the alleged infringement or infraction on the right of the Applicant; the specific fault of the alleged breach must be proved in substantial details” and came to a wrong conclusion by dismissing the case of the Appellant.
GROUND 2:
The learned trial Judge erred in law when he held that:
“The Applicant alleged arrest or threat of arrest but the Applicant did not prove specific detention and duration of such detention, for the Respondents to lead affidavit evidence to justify the alleged arrest or detention or otherwise” and thereafter dismissed the Appellant’s suit.
GROUND 3:
The learned trial Judge erred in law when he held that the Applicant has not in any way satisfied the legal requirement for proof in matters of Declarative Reliefs to warrant the grant of the reliefs sought contrary to the decision of the Court of Appeal in the case of OBONG IME ATAKPA & 4 ORS V UDOM JAMES EBETOR & 3 ORS. (2015) 3 NWLR, (Pt. 1447) pg. 549, at 569, paras D-E.
GROUND 4:
The learned trial Judge of the lower Court erred in law when he resolved the conflict in the affidavit of the parties in favour of the Respondents without calling for oral evidence contrary to the decision of the Supreme Court in LIJADU V. LIJADU (1991) 1 NWLR (PT.169) P.627.
GROUND 5:
The learned Judge of the lower Court erred in law when the trial Court suo moto wrongly raised and determined the issue of compensation that was not a claim before the trial Court in favour of the Respondents by holding that: “The Appellant in this suit has not denied the payment of compensation nor is there a Court ordered investigation of the Appellant to justify his/her fear of the arrest or likely arrest;” and came to a wrong conclusion in dismissing the case of the Appellant.
GROUND 6:
The learned trial Judge of the lower Court erred in law when he held that the Appellant did not exhibit the alleged order given by the Governor of Kaduna State for his/her arrest in the application of the Court’s perusal nor did the Appellant disclose to whom the order of the Governor was given for his/her arrest to justify.”

The relevant briefs of argument are:
1. Appellants brief of argument which was filed on 21-09-2021 but deemed filed on 30-11-2021. It is settled by Prof. Agbo J. Madaki.
2. 2nd Respondent’s brief of argument which was filed on 19-03-2021 but deemed filed on 7/3/2022. It is settled by A. Oluwawolemi Esan.

Learned counsel for the Appellant nominated three (3) issues for determination of the appeal. They are:
a) Whether the learned trial Judge of the lower Court was right when he held “in cases of allegation of violation of fundamental right, such as the instant case, the law is settled that mere allegation or deposition in an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the Applicant; the specific facts of the alleged breach must be proved in substantial details and further went ahead to hold that the Appellant has a higher responsibility to prove his declarative reliefs in a fundamental right proceeding.
(Distilled from grounds 1 & 3 of the Grounds of Appeal)
b) Having regard to the facts and circumstances of this case leading to this appeal, whether the learned trial judge of the lower Court was right when he resolved the conflicts in the affidavit evidence in favour of the respondents particularly on the payment of compensation to the Appellants, without calling the parties to address him as the issue of Compensation was not before the trial Court to decide.
(Distilled from Grounds 2, 4 & 5 of the Grounds of Appeal)
c) Having regards to the provisions of Section 41 & 46 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Articles 2, 4 & 12 of the African Charter, Human and Peoples Rights, Ratification and Enforcement, whether the Appellant must be arrested or obligated to exhibit an order of Court before he can enforce his rights under the fundamental rights proceeding and obtain to protection of the Court.
(Distilled from Ground 6 of the Grounds of Appeal)

Learned counsel for the 2nd Respondent distilled only two (2) issues for determination of the appeal. They are:
“1. Whether the trial Court was right in holding that the Appellant did not discharge the burden of proof to warrant the grant of the reliefs sought in the Motion on Notice for the enforcement of the Appellant’s fundamental rights; and
2. Whether the trial Court was right in dismissing the Appellant’s Motion on Notice for the enforcement of the Appellant’s fundamental rights without calling oral evidence.”

Learned counsel for the Appellant opened up his submissions on issue one by acknowledging that matters that come under Fundamental Rights Enforcement Proceedings are fought on the basis of affidavit evidence.

On this, Appellants counsel referred to the provision of Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and the case of Lafia Local Government v. Executive Governor of Nasarawa State (2013) ALL FWLR (Pt. 668) 156. He submitted that in this case, the trial Court misconstrue the law when it failed to examine and properly evaluate the affidavit evidence. He added that even where there are conflicts in the affidavit the Court will be required to call oral evidence. That the case of the Appellant depends on the facts as deposed by the Applicant at the Court below. He referred to the cases of A.G. Federation v. Kashamu & 11 Ors (2020) 3 NWLR (Pt. 1711) 209 at 279 and Okafor v. Lagos State Government (2017) 4 NWLR (Pt. 1556) 404 to say that the onus remains on the Applicant to prove by credible affidavit evidence that there has been a breach, there is a breach or there is likely to be a breach of his fundamental rights.

Learned counsel for the Appellant then reproduced Paragraphs 14 – 19 of the affidavit in support of the Applicant’s motion to wit:
“14. That Alhaji Umar M. Farouk and his eldest son, Alhaji Abba Umar Farouk were invited for out of Court settlement on 23/7/2019 at Government House, Kaduna but were arrested and detained.
15. That all claimants whose farmlands have been compulsorily acquired for Crown Flour Mills Ltd have been directed by the Government of Kaduna State to be arrested and detained including me and our counsel, Dr. R.O. Atabo.
16. That pursuant to paragraph 15 ante, Dr. R.O. Atabo had filed an action at the High Court of Justice of Kaduna State and obtained an order of interim injunction against the Respondents. A copy of the Order is attached and marked Exhibit C.
17. That at this juncture, I am apprehensive of the likelihood of the contravention of my fundamental rights as the purported meetings are not making any head way and the continuous invitation puts me at risk of being harassed, intimidated and/or detained by the Respondents.
18. That inasmuch as I am interested in settling this matter amicably, it has become apparent that I need to protect myself from being hoodwinked into harassment, intimidation and likely contravention of my rights.
19. That it is in the interest of justice to restrain the Respondents from further inviting me for purported meetings under the guise of settlement.”
See page 10 of the Record of Appeal.

He submitted that paragraph 13 of the affidavit in support to wit:
“13. That on Wednesday, 21st August, 2019 I was further invited for yet another meeting..” has not been expressly denied by the Respondents. He referred to the case of P.S.H.M.B. v Goshwe (2013) 2 NWLR (Pt. 824) 49 to say that uncontroverted facts contained in an affidavit are taken as true and only minimal proof is required of such evidence.

He submitted that it was the same directive by the executive governor of Kaduna State that led to the arrest and detention of Alhaji Umar Farouk and his eldest son, Alhaji Abba Umar Farouk. Therefore, that it is not the law that the Appellant must be arrested and detained before he can come under fundamental rights proceeding. That it is sufficient in law if the applicant can prove the likelihood of the infringement of his right by the Respondents. This, counsel said was laid by Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria to wit:
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.”

Appellant’s counsel referred to pages 92 – 93 of records, where the learned trial judge held as follows:
“The law is trite that [sic] where a Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence not be admission in pleadings of the Defendant that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of the claimant in such action depends entirely on the strength of his own case and not on the weakness of the defence. See BELLO VS EMEKA (1981) 1 SC 101, NASCO TOWN PLC VS NWABUEZE (2015) ALL FWLR (PT. 780) 1209 at 1397-1398 paragraph A-B.
In the instant case, the Applicant has not in any way satisfy [sic] the legal requirement for proof in matters for declaratory reliefs to warrant the grant of the reliefs sought for in this application including award of exemplary aggravated damages …”

He submitted that the case of Bello v. Emeka (supra) and Nasco Town Plc v. Nwabueze (supra) are cases on declaration of title to land and not fundamental rights proceedings. He argued that in a matter for declaration of title to land, even if the Defendant admits to the claim of the Plaintiff, the Plaintiff is still required under the law to prove his claim to entitle him to the reliefs sought. That it was therefore erroneous and wrong in law for the learned trial judge to have heavily relied on the above decisions to dismiss the case of the Appellant under the fundamental rights proceedings.

In responding to Appellant’s issue 1, 2nd Respondent contends that in civil litigation, the burden of proof lies on the party who would fail if no evidence were adduced by either party. In respect of particular facts, the burden of proof rests on the party against whom judgment would be given if no evidence were produced in respect of those facts.

He referred to Section 131 – 135 of the Evidence Act 2011 and the case of Abiodun v. A’dehin [1962] 2 SCNLR.

He submitted that the law is clear that in an action instituted under the Fundamental Rights Enforcement Procedure Rules (FREP Rules), the onus lies first on the applicant to show the Court how his rights were breached or likely to be breached by the respondent and it is only when this onus has been discharged by presenting before the Court, clear, cogent and vital evidence through the affidavit filed in support. Where that has not been done or where scanty evidence was put in by the applicant, the Court will strike out such application for being devoid of merit. On this, Respondent’s counsel referred to the cases of Fajemirokun v. C. B. Credit Lyonnais [2002] 16 NWLR (Pt. 774) 95 at 112 – 113 and Adekunle v. A. G. Ogun State [2014] LPELR – 22569 (CA) 36 – 37.
That in the latter case, the Court of Appeal held that:
“…Indeed, the Appellant has the burden to prove by cogent, convincing and credible evidence, the facts as alleged by him, as constituting the breach or infringement of the fundamental right to freedom from inhuman and degrading treatment or torture as guaranteed him by Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria. General and wide allegations of such breach or infringement will not suffice.”

Learned counsel for the 2nd Respondent submitted that it follows to succeed, the onus was on the Appellant to prove: (i) the grounds for the Appellant’s apprehension of likely infringement of his fundamental rights by the Respondents (in respect of the 1st – 2nd reliefs sought); and (ii) how the Appellant’s rights have been infringed by the Respondents (in respect of the 4th relief sought).

Learned counsel for the Respondent summarized the grounds for the Appellant’s apprehension of the likely infringement of his rights thus:
“The constant invitation of the Appellant to meetings held on 19, 20 and 21 August 2021 (“the Meetings”) were a ploy to intimidate the Appellants. See paragraphs 11, 12, 13 & 18 of the Appellant’s Affidavit contained at page 10 of the Record.
The Executive Governor of Kaduna State (“the Governor”) made an order for the arrest of the Appellant, his Counsel and other individual whose lands had also been acquired. See paragraph 15 of the Appellant’s Affidavit contained at page 10 of the Record.
Alhaji Umar Farouk had been arrested on the directive of the Governor. See paragraph 14 of the Appellant’s Affidavit in page 10 of the Record.”

On the above, Respondent’s counsel submitted that in paragraph 4(x) and (xi) of the Respondents’ Counter-Affidavit, the Respondents denied involvement in the Meetings and stated that they only became aware of the meetings upon the institution of the action at the trial Court. Further, that the Respondents averred in paragraph 4(ix) of the Respondents Counter-Affidavit that the Meetings were spearheaded by the Kaduna Geographic Information Service (KADGIS) and His Royal Highness, Sir Gbagyi.

He added that the Appellant failed in their further Affidavit to address the crucial issues of the Respondents’ awareness of and role in the Meetings; thereby admitting the Respondents’ denial of involvement in the meetings.

The foregoing, according to Respondent’s counsel led the trial Court to rightly hold at paragraph 2 on page 90 of the Record that “a close examination of the applicant’s affidavit reveals no nexus between his/her apprehension and any role played by the respondents”. This finding of fact, said counsel was not challenged by this appeal which according to him implies that the Appellant accepted that there is no nexus between his apprehension and any role played by the Respondents.

Learned counsel for the Respondent noted that the case of A.G, Federation v. Kashamu & 11 Ors (2020) 3 NWLR (Pt. 1711) 209 at 279 relied on by the Appellant in paragraph 4.4 of the Appellant’s brief do not support the Appellant’s position that in cases where likely infringement of rights is alleged, the applicant need not prove the basis of his apprehension.

Indeed, that the 1st Respondent in the case of AGF v. Kashamu (supra) relied on Exhibit B, a warrant of arrest dated 25.05.15 as proof of his apprehension and likelihood of arrest.

He submitted that the position of the law is that a mere oral or verbal threat to infringe on a person’s fundamental right does not ground an application for enforcement of fundamental rights. The party alleging such threat will have to show more that there were actions taken to carry out the threat.

After referring to the cases of A.G. Federation v. Kashamu (supra) at 274 and Ezeadukwa v. Maduka & Anor. [1997] LPELR – 8062 (CA) 42 – 44 on the above, learned counsel for the Respondent submitted that from the entirety of the Appellant’s Affidavit and Further Affidavit, the Appellant did not substantiate the allegation in paragraph 15 of the Appellant’s Affidavit that the Governor of Kaduna State made an order for the arrest of the Appellant and his colleagues. The Appellant did not allege that anybody attempted to, no matter how little the effort, arrest or detain the Appellant. Assuming without conceding that the Governor directed the arrest and detention of the Appellant and others as alleged, since nothing was done to carry out that directive, on the strength of the decision in AGF v. Kashamu [supra] and Ezeadukwa v. Maduka [supra], the Appellant could not sustain the application for the enforcement of his fundamental rights on that alleged directive alone.

On the contention of the Appellant that the arrest of the Farouks made him apprehensive that his fundamental rights were likely to be infringed, Respondent’s counsel submitted as follows:
“First, it is important to point out that the Appellant never sought any relief in respect of the alleged arrest of the Farouks. The reliefs sought at the lower Court is contained on pages 2 – 3 of the record and the Appellant cannot at this juncture expand the scope of the reliefs sought at the trial Court.
More importantly, the Respondents, in their Counter-Affidavit, annexed an order of the Magistrates’ Court as Exhibit MOJ 1 (See page 77 of the Record) which clarified that Alhaji Farouk was arrested on grounds that he received compensation for the acquisition of his land but denied being compensated.
In any event, the Appellant’s submission in paragraph 4.5 of the Appellant’s brief that it was the same directive for his arrest that was given for the Farouks’ arrest is an attempt to introduce a fresh issue on appeal without leave, which is impermissible as a party is not allowed to set up a new case on appeal. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 192, paras. E – F.”

On the contention of the Appellant that the trial Court referred to Bello v. Emeka [1981] 1 SC 101, and Nasco Town Plc v. Nwabueze [2015] ALL FWLR (Pt. 780) 1209 at 1397 – 1398, in holding that the Appellant did not satisfy the legal requirement of proof in matters for declaratory reliefs to warrant the grant of the reliefs sought.

Learned counsel for the Respondent submitted that the Appellant did not demonstrate at the trial Court that the general principle of law that in a declaratory action, a party must succeed on the strength of his own case and not on the weakness of the opponent’s case, does not apply to actions for the enforcement of fundamental right. In any event, said counsel, even if the trial Court was wrong to have utilized those cases, that cannot be a reason for the Court of Appeal to set aside the decision of the trial Court. The settled principle of law is that an appellate Court will concern itself with the propriety of the decision of a trial Court and not the reason for such decision.

He referred to the case of MTN v. Corporate Communications Investment Ltd [2019] LPELR – 47042 (SC) per Kekere-Ekun, JSC at pp. 18 – 19.

Learned counsel for the Respondent concluded on issue 1, that given that the Appellant was neither able to provide any basis of his apprehension of the likely infringement of his rights (as per his reliefs 1 and 2) nor any act of the 2nd Respondent that infringed on his rights, (as per his relief 4) the trial Court rightly dismissed the Appellant’s application.

In deciding issue 1, I recall that the learned counsel for the Appellant rightly quoted the decision of the Court of Appeal in the case of A.G. Federation v. Kashamu & 11 Ors. (2020) 3 NWLR (Pt. 1711) 209 at 279 as saying inter alia that “the question of infringement of fundamental rights is largely a question of fact…”

Yet, in this appeal the essence of the Appellant’s complain is that the learned trial judge was wrong, failed to evaluate the facts and misconstrue the law when he held that “. . . the Applicant has not in any way satisfy the legal requirement for proof in matters for declaratory reliefs to warrant the grant of the reliefs sought for in this application including the award of exemplary aggravated damages…”

Indeed, in my humble opinion, the learned trial judge was not wrong to have so held in the circumstances of the case. This is because the totality of the evidence presented in the Appellant’s Applicant’s Affidavit and Further Affidavit is insufficient to sustain the claim in Appellant’s reliefs 1 and 2 that his fundamental rights are likely to be contravened (as in reliefs 1 and 2 or are being contravened by the Respondents (as in relief 4) of the Appellant’s claims.

The importance of Appellant’s issue 1 takes us back to the rudimentary of the law of Evidence. In Section 258 of the Evidence Act, “Fact” includes – (a) anything, state of things, or relation of things, capable of being perceived by the senses; and (b) any mental condition of which any person is conscious.
However, under Section 121 of the same Evidence Act, a fact is said to be proved – when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist.

What the Appellant has done by his Affidavit and Further Affidavit in this particular case is to allude to facts – vague and speculative that are not capable of proving that his fundamental rights are being threatened or likely to be breached and/or that he is apprehensive that the Respondents are likely to breach his rights.

The fact that the learned trial judge made use of decisions in land matters that is declaration of title in land matters such as Bello v. Emeka [supra] and Nasco Town Plc v. Nwabueze [supra] to demonstrate the established principles of law in declaratory actions that the plaintiff must furnish cogent and reliable evidence and must succeed on the strength of his own case and not on the weakness of the opponent’s case does not derogate from the learned trial judge’s findings in the circumstances of this case and does not lay a higher standard of burden of proof for the Appellant in fundamental rights proceedings.

The truth as pointed out by the learned counsel for the Respondent is that a mere oral or verbal threat to infringe on a person’s fundamental right does not ground an application for enforcement of fundamental right. The party alleging such threat will have to show more that there were actions taken to carry out the threat. The similarity here is like trying to prove the offence of “Attempt”. To proof “attempt” there must be an overt act which would not culminate into the main offence but which nevertheless is required to convince the Court that the offence of “Attempt” is complete. Thus, if with intent to commit an offence, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. See e.g. Section 1(1) of the English Criminal Attempt Act 1981.
The Appellant for example considers his paragraphs 14 and 15 of his supporting Affidavit to be material and germane to his case, but in reality those paragraphs have said nothing that is relevant to his claim before the trial Court:
“14. That Alhaji Umar M Farouk and his eldest son, Alhaji Abba Umar Farouk were invited for out of Court settlement on 23/7/2019 at Government House, Kaduna but were arrested and detained.
15. That all claimants whose farmlands have been compulsorily acquired for Crown Flour Mills Ltd have been directed by the Government of Kaduna State to be arrested and detained including me and our counsel, Dr. R.O. Atabo.”
These are facts, which are at best remotedly connected with the facts in issue in this case and therefore are not relevantly connected to proof the facts on which the parties joined issues, namely that the Appellant’s rights are threatened or are likely to be breached by the Respondents.
The Appellant did not provide any positive evidence of the threat to arrest him or the order to arrest him.
Indeed, the learned trial judge was right when he held at page 91 of the records that:
“In the instant case, from the entire gamut of affidavit in support of the applicant’s application, there is nowhere in my view that the applicant disclosed the involvement of the respondents or demonstrated how the respondents are likely to infringe on his/her rights.”
In A.G. Federation v. Kashamu (Supra) at 274, paras G-H, the Court of Appeal held that:
“…mere verbal or oral threat not backed with some overt act of an attempt to infringe the fundamental right of the applicant by the respondent is not enough to sustain the action for threatened breach of fundamental right. There should be evidence showing the appellant was determined or unequivocally poised and/or had reached a point of no return to have the 1st respondent’s personal liberty restrained…”
Similarly, in Ezeadukwa v. Maduka & Anor (1997) LPELR – 8062(CA) 42-44, paras. D-B), the Court of Appeal held that:
“In order to succeed in an action under Section 30 of the Constitution, and in the context of the third limb of Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, an applicant must prove that the respondent threatened TO KILL HIM. And a, mere oral threat on the part of the respondent to kill the applicant is not enough to sustain an action. The threat should be backed up with some overt act of an attempt to kill or exhibition of weapons or materials capable of effecting the murder or killing of the applicant. A mere vulgar threat of an oral nature without more cannot sustain a Section 30 action.”

Following the above cited cases, the learned trial judge was not wrong when he held that the Applicant has not in any way satisfy the legal requirement of proof in matters for declaratory reliefs to warrant the grant of the reliefs sought for in this application including the award of exemplary aggravated damages.

The complaint of the Appellant in respect of issue 2 is as quoted by the learned counsel for the Appellant on page 90 of the records when the learned trial judge held as follows:
“In the instant case, a close examination of the Applicant’s affidavit reveals no nexus between his/her apprehension and any role played by the Respondent. The Applicant’s total and heavy reliance on the events and circumstances surrounding the meeting held on the 23rd day of July, 2019 and the arrest of Alhaji Umar M. Farouk are totally distinct from the instant case. This is so because a careful perusal of the Respondents’ counter-affidavit particularly paragraphs 4 (xiii) and (xiv) thereto, reveals the fact that while the alleged arrest of Alhaji Umar M. Farouk was a Court ordered investigation arising from a categorical denial of the receipt of any penny as compensation as shown in Exhibit MOJI annexed to the Respondents counter affidavit. The Applicant in this suit has not denied the payment of compensation nor is there a Court ordered investigation of the Applicant to justify his/her fear of arrest or likely arrest.”
He submitted that the issue of compensation was not the claim of the Appellant before the lower Court neither was it an issue for determination before the learned trial judge. He submitted that further issues were not joined by the parties on compensation, that it was therefore erroneous for the learned trial judge to have held that the Appellant had not denied the issue of compensation. It is trite law said counsel, that parties are bound by their pleadings. In other words, the Court cannot grant reliefs or raise issues not put before it by the parties.

He added that where in any event, the Court raises an issue suo motu, the parties must be given an opportunity to address the Court.

Still on issue 2, learned counsel for the Appellant further noted that at page 90 of the record of appeal, the lower Court held that the circumstances leading to the arrest of Alhaji Umar M. Farouk are totally distinct from the instant case. He submitted that there was no Court order that led to the arrest of Abba Umar Farouk, that it was just a mere directive of the Governor of Kaduna State.

Appellant’s counsel believes that the failure of the lower Court to resolve the above conflicts in affidavit evidence without calling oral evidence is a denial of fair hearing.

He reasoned in conclusion on issue 2, that the position of Respondents vis-à-vis the position of the Appellant that he was directed to be arrested by the Governor of Kaduna State shows the material contradiction which required oral evidence and that the trial Court was in error not to have called oral evidence on those items.

Learned counsel for the Respondent identified and itemized the two points which the Appellant argues were in conflict and required oral evidence to clarify as follows:
(i) Whether the Appellant was paid compensation by the government of Kaduna State for the alleged acquisition of his land and
(ii) Whether the governor of Kaduna State directed the arrest and detention of the claimants who instituted suits against the State for the acquisition of their land.

Learned counsel for the Respondent submitted (i) that the two issues which the Appellant argues were in conflict before the trial Court did not constitute material conflict to necessitate calling oral evidence by the trial Court, and (ii) In any event, oral evidence are not called in fundamental right actions.

Learned counsel for the Respondent referred to the case of LSDPC v. Adold Stamm Int. (Nig) Ltd. [2005] 2 NWLR (Pt.910) 603 at 621 and submitted that none of the said issues constitute a live issue in the trial. On the issue of compensation, said counsel, the Appellant himself has argued that the issue was completely irrelevant before the trial Court. That having conceded that the issue of compensation was irrelevant and immaterial, he submitted that the trial Court was right not to have called for oral evidence on the point.

On the second point of whether the governor of Kaduna State directed the arrest and detention of the Appellant, the 2nd Respondent submits that there was no material conflict to warrant the calling of oral evidence.

He explained that as regards the above, all that happened was that the Respondents denied the assertion that the governor directed the Appellant’s arrest, therefore it was not a conflict of Affidavit situation but properly so called a joinder of issues.

Learned counsel for the Respondent concluded on issue 2 by relying on the cases of Jack v. University of Agriculture Makurdi [2004] 5 NWLR (Pt. 865) 208 at 227, UBA & Anor. v. Johnson [2018] LPELR – 45073 (CA) 30 – 36 to say that judicial authorities are clear that in an action for enforcement of fundamental rights, oral evidence are not required.

First, I adopt my resolution of issue 1 in deciding issue 2.

Second, the Appellant himself must have been at great pains in conveying what exactly he wanted to achieve by the first leg of issue 2. The idea that the parties did not join issue on compensation, that the issue of compensation is irrelevant in the suit is totally inconsistent with his contention that the trial Court ought to have called oral evidence on the same issue. In any event, the trial Court did not decide any issue of compensation. It was a passing remark, obiter in his review of evidence to show that the basis or grounds of Mr. Farouk’s arrest did not apply to the Appellant since the Appellant did not deny compensation. This remark is obiter and either on account of raising an issue not before the Court or on account of calling oral evidence, it could not have found its way into the present appeal.

The 2nd leg of Appellant’s issue 2 is as preposterous as the 1st leg. When in a civil proceeding one party asserts a fact as it happened on the issue of the governor’s directive to arrest the Appellant and the other party denies same, there is no conflict of Affidavit evidence because indeed the purpose of a counter-affidavit is to contradict and oppose another affidavit. Rather, in such situation the parties are said to have joined issues on that particular point. Joinder of issues, similiter is not synonymous with conflict in affidavit evidence.

The 8th Edition of the Black’s Law Dictionary explains “Joinder of issue”. 1. The submission of an issue jointly for decision 2. The acceptance or adoption of a disputed point as the basis of argument in a controversy – Also termed joinder of issue, similiter. 3. The taking up of the opposite side of a case or of the contrary view on a question”.

The calling of oral evidence was not necessary in any of the issues contemplated in Appellant’s issue 2. The learned trial judge was not in error in failing to call oral evidence. Issue 2 is resolved against the Appellant.

On issue 3, learned counsel for the Appellant submitted that the order by the Governor of Kaduna State need not be exhibited before the Applicant can come under the fundamental rights proceedings. That once there exist the likelihood, as disclosed in the Appellant’s affidavit, that his rights can be violated by the actions of the Respondents, the Appellant has a constitutional right to seek protection under the law.

He submitted that it is not the law that an order of the governor must be exhibited before the Applicant can ventilate his grievance before the Court of law.

Learned counsel for the Appellant further quoted the trial Court to have held that:
“the law is therefore trite that it is not enough for the Applicant to merely state an act is illegal and unconstitutional in an application for the enforcement of fundamental rights, particularly where arrest is alleged, the Applicant must prove specific detention and direction [sic] . . . In the instant case, the Applicant alleged arrest or threat of arrest but the Applicant did not prove specific detention and duration of such detention, for the Respondent to lead affidavit evidence to justify the alleged arrest or detention or otherwise..”

From the above quotation culled from the judgment of the trial Court, Appellant’s counsel submitted that the trial Court misunderstood the case of the Appellant and did not consider the other circumstances under which enforcement proceedings may be commenced under Section 46 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

He submitted that the case of the Appellant at the trial Court was that of likelihood of arrest and detention, the Appellant could therefore not have exhibited either the order of the executive governor or stated the duration of the detention in his affidavit evidence as there was no such detention yet.

The Respondent provided answers to the two points raised in Appellant’s issue 3 in his treatment of Issue 1. On the first point, learned counsel for the Respondent urges us to reject the Appellant’s argument as nowhere in the judgment did the trial Court hold that the Appellant could not come under fundamental rights proceedings unless the order for his arrest was exhibited. The trial Court only held that by not exhibiting the alleged order of arrest, the Appellant had not justified the allegation that the Governor gave the order of arrest.

Learned counsel for the Respondent reproduced the relevant excerpt of the judgment as follows:
“Furthermore, the applicant did not exhibit the alleged order given by the governor of Kaduna State for his/her arrest in the application for the Court’s perusal, nor did the applicant disclose to whom the order of the governor was given for his/her arrest to justify such allegation. It is submitted for the respondents and quite rightly too, in my view, that these allegations are afterthought and therefore speculative.” See page 91 of the Record.

Curiously, said counsel, the Appellant did not appeal the trial Court’s finding on page 91 of the record that the alleged order of arrest is an afterthought and speculative which implied that the Appellant accepted that his allegations against the Governor were mere speculations.

On the second leg of Appellant’s issue 3 and the suggestion by the learned counsel for the Appellant that the trial Court misunderstood his case as one of infringement of his fundamental right; learned counsel for the Respondent reminded the Appellant that his case at the trial encapsulated infringement of his fundamental rights. That the Appellant’s fourth relief reads thus:
“An order directing the respondents jointly and severally to pay the applicant the sum of Two Million Naira (N2,000,000.00) only each being exemplary/aggravated damages for the infringement of the Applicant’s Fundamental Human Rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and the African Charter of Human and People’s Rights.” (Ratification Act). (emphasis added).

To further buttress this point, counsel submitted that the Appellant made arguments on infringement and unlawful arrest in his written address in support of the Motion on Notice. He referred on this to paragraph 3 – 8 of the Appellant’s written address in support of the Motion on Notice (page 32 of Records) as follows:
“On remedy available to persons unlawfully arrested or detained i.e. the Applicants in this case, the Court of Appeal states in Akpan v FRN (2012) 1 NWLR part 1281 at page 409 that . . . in this instant case, the applicants through their affidavits and exhibits proved the infringement of their fundamental rights by the Respondents.”

Learned counsel for the Respondent concluded on the 2nd leg of Appellant’s issue 3 that it is clear that the Appellant made a case for unlawful arrest and infringement of fundamental rights, thus the trial Court was right to demand for proof of arrest, duration and detention, and infringement of fundamental rights.

I think the learned counsel for the Respondent had clearly demonstrated that the allegations and or complains contained in Appellant’s issue 3 are indeed not borne out from the records.

In the first place, the quotation from the judgment of the trial Court on page 91 of the record of appeal was an explanation by the learned trial judge that the Appellant had not justified the allegation that the Governor gave any order of arrest. The trial judge only held that by not exhibiting the alleged order of arrest, the Appellant had not justified his allegation. There was indeed nowhere in the judgment that the trial Court held as the 1st leg of Appellant’s issue 3 would want us to accept that the Appellant could not come under fundamental rights proceedings unless there was a written order of arrest and/or that such written order of arrest must be exhibited.

Similarly, the learned trial judge could not be faulted for delving into the question of alleged arrest and detention for in fact relief 4 of the Appellant’s relief sought to claim damages not just for threat of infringement as in reliefs 1 and 2 of the Appellant’s Motion on Notice but “for the infringement of the Applicant’s fundamental rights…”

Now, Appellant’s issue 3 was said to have derived from ground 6 of the Amended Notice of Appeal. Ground 6 of the Amended Notice of Appeal together with its particulars read thus:
“GROUND 6
The learned trial Judge of the lower Court erred in law when he held that the Appellant did not exhibit the alleged order given by the Governor of Kaduna State for his/her arrest in the application of the Court’s perusal nor did the Appellant disclose to whom the order of the Governor was given for his/her arrest to justify the allegation.
PARTICULARS OF ERROR:
a. A threat for the arrest of the Appellant need not be in writing before the Appellant could exercise his constitutional right under Section 41 & 46 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
b. The arrest and detention of Alhaji Umar Farouk was not a Court ordered investigation nor was there a written letter from the Governor of Kaduna State for his arrest.
c. That it was a verbal instruction given by one Jimi Lawal to the 2nd Respondent on the authority of the Governor before Alhaji Abba Umar Farouk was arrested.
d. It was therefore erroneous for the lower Court Judge to have held that the instruction of the Governor must be written before the Appellant can exercise his right for the enforcement of his fundamental rights where there was likelihood of his arrest by the Respondent.”

The particulars of error relative to the said ground 6 do not reflect the substance of the said ground neither does it relate to any ratio in the judgment of the Court nor is Appellant’s issue 3 limited to the said ground 6 of the Notice of Appeal. In the circumstance of this case, both ground 6 of the Appellant’s Notice and grounds of Appeal and the issue 3 which claimed to have derived from it are liable to be struck out.

The law is trite that a ground of appeal must relate to the ratio of the decision appealed against. In M.B.N Plc vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379 at 387 – 388, the Supreme Court held:
“It is always an elementary law that grounds of appeal must of necessity arise from the judgment, ruling or decision or any pronouncement of the Court below. When a ground has not the remotest connection with what the Court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, but he misconceived what he ought to complain against and confused himself by setting up a case not in existence, the Appellate Court would naturally throw away the incompetent appeal. In the event that there is only one such ground, then of course, there would simply be no appeal as what is set down as a ground of appeal is non-existent being no more than a figment of imagination of the appellant…”

Also, in the case of Iloabachie vs. Iloabachie (2000) 5 NWLR (Pt. 656) 194, the Court of Appeal held thus:
“A ground of appeal which purports to raise and attack an issue not decided by the judgment is incompetent. Thus, where the factual basis for attacking a judgment is false or non-existent, the ground of appeal based on the fictitious or misleading premise is incompetent. It constitutes a clear misrepresentation of the decision of the trial Court which vitiates the basis of the complainant on appeal.
In the instant case, the ground of appeal which dealt with the issue of the trial Court deciding the question of title to land in dispute did not arise from a determination of the trial Court and is therefore incompetent. Issue 7 formulated therefrom is also incompetent.”
See also Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156 at 158, Bakule vs. Tanerewa (Nig) Ltd (1995) 2 NWLR (Pt. 308) 724 at 739 – 340, Fabiyi vs. Adeniyi (2000) 5 SC 31 at 42.
Indeed, an appeal should be a complaint against the decision of a trial Court. Thus, in the absence of such a decision on a point, there cannot possibly be an appeal against what has not been decided against a party. See Oredoyin vs. Arowolo (1989) 4 NWLR (Pt. 114) 172 SC, Babalola vs. State (1989) 4 NWLR (Pt. 115) 264 SC, Ngige vs. Obi (2006) 14 NWLR (Pt. 999) 1.
In the circumstance, the proper order to make in respect of Appellant Ground 6 of the Amended Notice of Appeal and his issue 3 is to strike out both for incompetence. Appellant’s ground 6 of the Amended Notice of Appeal and issue 3 are hereby struck out.

In this appeal, the Appellant nominated three (3) issues for determination of the appeal. Appellant’s ground 6 of the Amended Notice of Appeal and issue 3 were struck out for incompetence. Issues 1 and 2 were also resolved against the Appellant. This appeal is devoid of merit and it is accordingly dismissed. Parties to the appeal are to bear their respective costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned brother, MOJEED A. OWOADE, JCA. I am in entire agreement with his reasoning and the conclusion he arrived at on each of the issues raised in the appeal. And that the appeal is devoid of merit. I do not think that I should, merely for sake of making a contribution repeat in different words the points he has clearly made. In the result, I do not wish to add anything. I too dismiss the appeal. I abide by the consequential order(s) in the leading judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.