CYPRAIN E. IBENEME v. MR. AWOLABI & ORS (2014)

CYPRAIN E. IBENEME v. MR. AWOLABI & ORS

(2014)LCN/7351(CA)

In The Court of Appeal of Nigeria

On Monday, the 7th day of July, 2014

CA/PH/382/2007

RATIO

APPEAL: ISSUE FOR DETERMINATION; WHETHER AN ISSUE FOR DETERMINATION MUST BE DISTILLED FROM GROUND(S) OF APPEAL WHICH MUST ALSO FLOW FROM THE JUDGMENT APPEALED AGAINST

The law is that an issue for determination must be distilled from ground(s) of appeal, which must, in turn, arise or flow from the judgment appealed against. See the case of OSSAI v FRN (2013) 13 WRN 87; Unilorin v. Olawepo (2012) 52 WRN 42; Shettima vs Goni (2011) 18 NWLR (pt 1297) 413; Oseni v. Bajulu (2010) All FNLR (pt.511) 813; Shuaibu Abudu v. The State (2014) LPELR 22562 (CA), Page 49. per. ITA G. MBABA, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHETHER HE WHO ALLEGES MUST PROVE

The law is that he who alleges must prove. See section 131, 132, and 133 of the Evidence Act, 2011; Abdul Rahman V. Kadin (2012) LPELR – 8001 (CA); Obi v. Onyemlukwe (2011) NWLR (Pt. 1228) 400; Eyo V. Onuoha 2011) 11 NWLR (pt. 1257) 1; Dim V. Enemuo (2009) 10 NWLR (pt. 1149) 353; Hydyer Trading Manufacturing Ltd v. Tropical commercial Bank (2013) LPELR – 20294 (CA); Bala V. Sakyenu (2013) LPELR – 21409 (CA). per. ITA G. MBABA, J.C.A.

EVIDENCE: HEARSAY EVIDENCE; WHETHER A COURT CANNOT ACT ON EVIDENCE FOUNDED ON HEAR-SAY

A court cannot act on evidence founded on hear-say and speculation, no matter how sordid it sounds to win sympathy. See Usman v. New Nigeria Bank Plc (2013) LPELR 20404 CA. per. ITA G. MBABA, J.C.A.

EVIDENCE: DEPOSITION; WHETHER A DEPOSITION MUST BE DIRECT

In the case of Abiodun v. C. J. Kwara State (2007) 18 NWLR (pt. 1065) 109 at 144, it was held by this court, per Ogunwumiju JCA as follows:

“By virtue of section 88 of the Evidence Act when a person deposes to his belief on any matter of fact and his belief is derived from any other source, other than his own personal knowledge, he shall set forth, explicitly, the facts and circumstances received from another person, the deponent must state, with reasonable particulars, the name of his informant, the time, place and circumstance in which he got the information. Thus, the combined reading of sections 76, 77, 86, 87 and 88 of the Evidence Act is that a deposition must be direct …” See Adeleke V. Aruke (2006) 16 NWLR (pt. 1004) 131.
See also Gov. of Lagos State v. Ojukwu (1986) 1 NWLR (pt. 18) 621, where it was herd that the informant must be named, if the deponent is swearing to information given to him by another person; that this hear-say in an affidavit is not countenanced, especially if the deponent swears to what he was told by an unnamed person.
In Barclays Bank Ltd v. CBN (1976) 176 it was held: “The substance of the affidavit constitutes the evidence before the trial court and its veracity must be as ascertainable as the evidence of a witness on oath in the witness box, giving oral testimony. It is not enough to makes sweeping statements of facts which are not stated to be within the knowledge of the maker, communicated by unnamed person to the maker” per. ITA G. MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

CYPRAIN E. IBENEME Appellant(s)

AND

1. MR. AWOLABI
2. ABIODUN OKUSAMI
3. UNITED BANK FOR AFRICA PLC Respondent(s)

ITA G. MBABA, J.C.A (Delivering the Leading Judgment): This is an Appeal against the decision of the Abia State High Court, in suit No. HOB/37M/06, delivered on 5/2/2007 by Hon. Justice S.M. Analaba, wherein the court dismissed the Fundamental Rights application, taken out by the Appellant, (Applicant at the Court below), saying that Applicant did not establish that:

“the Respondents engaged the services of the Bakassi men to invade, brutalise, arrest and detain them.”

In the application, at the trial court, filed pursuant to Order 1 Rule 2 (1) (3) of the Fundamental Rights (Enforcement procedure) Rules, 1979, Applicant had sought a declaration that the invasion of his residence at No. 15 Brass Street, Aba, arresting and detention by persons, who acted at the instance and/or instructions of the 1st and 2nd Respondents was unconstitutional, in that the same constituted infringement of his fundamental right; and that his humiliation and disgrace, in the hands of the said agents of the 1st and 2nd Respondents, acting in the course of their employment by the 3rd Respondent, was unconstitutional, as it infringed his rights to dignity of his person. He sought an order compelling the Respondents to pay to him the sum of One Million Naira (N1, 000.000), as compensation.

Appellant had filed all the necessary processes and served same on the Respondents, who also filed a joint counter affidavit, denying the allegations made by the Applicant. The trial court believed the Respondents and dismissed the application.

Appellant filed Notice of appeal on 16/4/2007 and an Amended memorandum of grounds of appeal on 5/3/2012, with the leave of this court. He raised 4 grounds of appeal altogether (2 grounds on each) He filed his brief of argument on 7/3/12 (which was deemed duly filed on 3/7/12), and formulated a single issue for determination, namely,

“Was the learned trial Judge correct to hold that the Applicant failed to prove that the Respondents engaged the services of Bakassi men, who invaded the house of the Appellant, brutalized, arrested and detained the Applicant?”

The Respondents filed their brief on 27/2/13, with the leave of this court, granted on the same date (27/2/13). The Respondents adopted the lone issue formulated by the Appellant for the determination of the appeal, but they added an addition:

“Whether the trial court’s jurisdiction was not vitiated by (a) Non – direct or personal service of the Application on the Respondents as provided by Order 2 Rules 3 and 4 of Fundamental rights (Enforcement Procedure) Rules 1979, and (b) Non – Filing of the facts relied on by the Appellant at the lower court contrary to Order 1 Rule 2 (3) of Fundamental Right (Enforcement procedure) Rules, 1979. (c) Non – inclusion of the illegal Bakassi persons that allegedly arrested, detained and tortured the Appellant as parties in the matter.”

The Respondent did not relate his additional ground to any of the grounds of appeal raised by the Appellant, and, infact, the issue does not distill from any of the grounds of appeal. The said additional issue, raised the by Respondents, is therefore a stranger to this appeal as the same is floating, not having any base to hang, or settle.

The said additional issue by the Respondent, being incompetent, is hereby struct out, with the arguments there under.
If the Respondent had really wanted to argue that issue, he needed to have filed a Respondent’s Notice, to raise it as a fresh issue not contempted in the grounds of appeal by Appellant.
Arguing the Appeal on 28/5/2014, the Appellant’s Counsel, Chief Eze Duruihuoma S.A.N., who settled the brief, referred us to the case of “CCC Thrift and Credit Society V. Ekpo (2000) 17 NWLR (Pt.748) 649, which the trial court relied on, and argued that the inference the trial court made of the above case, in con of resolving conflicts in affidavit was wrong; that the impression given by the trial judge was that the above case dealt with a situation where a party, after filing an original counter – Affidavit, failed to controvert new facts disclosed in a further and better Affidavit.
Counsel argued that, that was not the purport of the case of” CCC Thrift and Credit Society V. Ekpo (Supra), which rather dealt with the normal situation where two affidavits are in conflict; not where one side fails to controvert new facts in a further affidavit, which corroborate earlier averments.
Counsel submitted that, to the extent that the trial judge failed to note the distinction drawn above, his conclusions were perverse and must be disallowed.
He relied on the Atolagbe v. Shorun (1985) NWLR (pt. 2) 360 at 375. He argued that when the trial judge said:

“There is no place for further and Better Affidavits unless it contains an authentic and relevant document with which the court can resolve the conflict in the Affidavit”,

he appeared to be saying that there is no room for a better affidavit, if the earlier ones are in conflict! Counsel submitted that there is no dichotomy between evidence contained in an original affidavit and the one in a further and better affidavit; that in the instant case, the Applicant, in compliance with the provisions of Order 2 Rule 2 (2) of the Fundamental Rights (Enforcement procedure) Rules, filed a further affidavit and gave the required notice, that he would use it at the hearing; he submitted that the said further and better affidavit was therefore properly filed and constituted part of the evidence before the trial court. He relied on Nwosu v. Imo State Environmental Agency (1990) 2 NWLR (pt 135) 689 at 715; SAN – YAOLU V. ADEKUNLE (200) 7 NWLR (pt 980) 551 at 561.
Counsel submitted that since the Respondent did not controvert the fact contained in the Further and Better Affidavit, the trial court should have acted on the same; that the trial judge was wrong to hold, as he did, that Applicant had not proved the allegations against the Respondents.
Counsel submitted that the law is settled, that paragraphs of affidavit not specifically denied are deemed to be admitted. He relied on Nwosu v. Imo State Environmental Agency (supra) at 735, and on UBN v. LUOBAI NIG. LTD (2008) 2 NWLR (pt. 1071) 257 at 278, where this court said:

“The position of the law is that evidence or averments in Affidavit that are not denied are deemed admitted. The court would act on them, especially when they are credible and reliable.”

He argued that there is nothing to show that the facts disclosed in the said further and better affidavit were not credible or reliable; that there was no reason therefore for the trial judge not to have evaluated them; that if the trial judge had evaluated the further and better affidavit, he would have found that Mr. John Egbuchulem, who described himself as the Resident Control Officer, failed to State what his duty schedule, in relation to the above office was; that without the benefit of such evidence, the undenied averments in paragraphs 3 and 15 of the Further Affidavit should have been believed; and that the claim of the 1st and 2nd Respondents, that they did not engage the services of Bakassi men, cannot stand in the face of the positive and uncontroverted averments in paragraphs 7, 8, 9 and 13 of the further affidavit.

Counsel, submitted that the conclusion, derivable from the above, is that the trial judge was in gross error to have refused to use the Further Affidavit of the Applicant to resolve the so – called conflict in the original affidavit of the parties; that it would appear the trial court expected the Applicant to produce the statement made to the police by the woman at the centre of the controversy; that that expectation was wrong in law and in common sense, as the need to produce the said statement would have arisen, if there was a dispute as to whether it existed and what it contained; that there was no such dispute in this case, because there was no denial by the Respondents that any person known as Edith in their employment made a statement to the police.
Thus, there was no need or necessity for the Applicant to prove that which was not in dispute. Counsel added that, that which is not denied is deemed or presumed to have been admitted. He relied on A. G. Anambra State v. A. G. Federation (2005) 9 NWLR (pt. 931) 572 at 611. He urged us to resolve the issue for the Appellant and to allow the appeal.
The Respondents counsel, D. O. Uruakpa Esq., submitted that the Appellants misunderstood the way the learned trial judge applied the case of CCC Thrift and Credit Society v. Ekpo (2001) 17 NWLR (Pt. 743) 649; that the learned trial judge rightly held that the ratio of the above case is that, where there is a document that can resolve conflict in affidavits, that there is no need for oral evidence.

Counsel said that the trial court rightly reasoned that, since the Appellant had desposed to the fact that Edith, the lady at the centre of this matter, had volunteered a statement to the police on the matter, that there is authentic document pertaining to the matter, which ought to have assisted the court to resolve the conflict, one way or the other, but was not produced by the Appellant; that the same would have resolved the matter in line with the case of CCC Thrift and Credit Society V. Ekpo (Supra).
Counsel submitted that the most important point to show that Applicant (Appellant) did not prove his case, as held by the trial court, is that paragraphs 3 to 16 of the further affidavit were conclusions and hear say, which offended the sections 87, 88 and 89 of the Evidence Act, Cap E.14 LFN, 2004. Specifically, he argued that paragraphs 3, 4, 11, 15 and 16 of the further and better affidavit were conclusions, while paragraphs 5, 6, 7, 8, 9, 11, 12 and 13 were depositions that were obviously outside the knowledge of the Appellant, and he did not disclose who told him, as per sections 88 and 89 of the Evidence Act.

Counsel also noted that the key persons who were named in the further and better affidavit – one Ndubuisi and Edith – who allegedly, took the alleged Bakassi men to the Appellant’s house, were not joined in the suit, and the statement which Edith made to the police, was not produced at the trial. He said the two were necessary parties. He urged us to dismiss the appeal.

RESOLUTION OF THE ISSUE

I think the issue for determination – whether the trial court was right to hold that the Applicant failed to prove that the Respondents were the persons who engaged the services of Bakassi men, who invaded his house, brutalized, arrested and detained him – calls for a total over view of the evidence to determine whether the learned trial judge evaluated the same, properly, to reach the conclusion that the Appellant failed to prove his case.
As part of the grounds for bringing the application, as per his statement Appellant had stated as, follows:

“On 18th of January, 2006, about 19 persons of the notorious but illegal Bakassi outfit, acting on the instructions by the 1st and 2nd Respondents, and using 3 buses and 2 cars all provided by the Respondents, invaded the privacy of the Applicants home…. and unleashed untold mayhem. They wrecked harvoc in the Applicant’s home and ransacked every part of the building, leaving a trail of destruction every where. The Appellant’s wife, Mrs Chinyere Ibeneme, his son … and other inmates of his house were abused, assaulted and taken away as hostages, pending the return of the Applicant… The Applicant report at the office of the illegal Bakassi outfit, where he was detained by some fierce looking youngmen and questioned about his involvement in the robbery incident earlier referred to…” (page 6 of the Records).

The said facts were further reduced to an affidavit (Affidavit verifying the facts relied on) by the Appellant on 4/9/2006, as per pages 9 – 10 and 19-20 of the Records of Appeal.

Of course, the Respondents filed a counter affidavit and denied links with the alleged invaders and offenders. They said, as follows, in paragraphs 8, 9, 10 and 11 of the counter affidavit:

“(8) That the respondents did not invade No. 15 Brass Street, Aba, residential home of the Appellant personally or through the outlawed Bakassi Vigilante Group neither did the alleged, persons invade the Appellant’s home at the instance of the 1st and 2nd Respondents in the course of their employment by the 3rd Respondent.

(9) That the Respondents did not instruct any person to arrest and detain the Applicant.

(10) That the Respondents did not instruct the alleged persons to maltreat, abuse, arrest and detain the Applicant.

(11) That save to stress that the action of the 1st and 2nd Respondents as officers of 3rd Respondent relates mainly and only to banking and allied matters, the rest of grounds (a) of the Applicant is true.” See page 22 of the Records.

There was evidence on both sides that the 1st and 2nd Respondents were management staff of the 3rd Respondent, a bank. See paragraph 4 of the counter affidavit and ground (a) of the Appellant’s grounds in his statement.
Having therefore denied links with the alleged Bakassi men who unleashed harvoc at the Applicant’s residence and caused all the breaches of his fundamental rights, the onus was on him (Appellant) to establish, with credible evidence that the alleged Bakassi men acted on the instruction of the 1st and 2nd Respondents and were in the course of service of the 3rd Respondents, and were doing so as agents of the 3rd Respondent. The law is that he who alleges must prove. See section 131, 132, and 133 of the Evidence Act, 2011; Abdul Rahman V. Kadin (2012) LPELR – 8001 (CA); Obi v. Onyemlukwe (2011) NWLR (Pt. 1228) 400; Eyo V. Onuoha 2011) 11 NWLR (pt. 1257) 1; Dim V. Enemuo (2009) 10 NWLR (pt. 1149) 353; Hydyer Trading Manufacturing Ltd v. Tropical commercial Bank (2013) LPELR – 20294 (CA); Bala V. Sakyenu (2013) LPELR – 21409 (CA).

Appellant’s further and better affidavit was expected to supply the necessary facts to debunk the Respondents’ averment, that they had no links with the said invaders, who unleashed the evil on the Applicant, his family and properties. What the Appellant stated in the further affidavit which, I think was of significance, were in paragraphs 5 to 16 thereof:

“(5) that the truth of the matter is that after the said Robbery incident, the 1st and 2nd Respondents visited their Aba Branch to carry out an investigation.

(6) That in the course of their so – called investigating, they engaged the services of men of the Bakassi outfit.

(7) That a female staff of the 3rd respondent, Edith was taken to Native Doctors at Akwa-Ibom and Ikeduru by the 1st and 2nd Respondents in the company of one Bakassi man;

(8) After the visit to the Native Doctors the said Edith was brought back to the 3rd respondent’s office at Ikot Ekpene Road where she was cajoled to give my name and address to the Bakasso men.

(9) The said Edith was alleged by the 1st Respondent to be my mistress.
(10) That when the said Edith resisted the intimidation, the Bakassi men, whose number had increased, threatened her life, prompting her to confess that while she did not know where I live, it is one Ndubuisi (ND) who knew.

(11) She said ND is my account officer.

(12) That the said Edith took the Bakassi Men to N.D’S house.

(13) That under threat of death, the said ND now took the Bakasi men to my house accompanied by Edith and other staff of the Bank in vehicles supplied by the 3rd Respondent.

(14) That the incident was reported to Zonal 9 Police Command, Umuahia, vide a letter from my solicitor, dated 25th January 2005 (sic) (2006)… (15) That once again I repeat that the Deponent to the counter Affidavit is unaware of the details, which I have narrated herein.

(16) That the lady at the center of this matter volunteered statements to the police on this matter.”

It was after considering the entire affidavit evidence that the trial court said, on page 62 of the Records of Appeal:

“It is obvious that there is a very serious conflict between the affidavit of the Applicants (sic) and that of the Defendants. The law is now settled that court is incapable of resolving such conflict by simply preferring one version of the affidavit evidence as against the other. The proper procedure is for the court to call oral evidence in order to determine between the parties who is actually telling the truth. Nevertheless, it is not only by calling oral evidence that conflict in affidavit evidence could be resolved as there may be authentic documentary evidence which supports one of the affidavits in conflict…, where therefore, there are documents which will enable court to resolve the conflict in the two affidavits, there is no need for oral evidence. See CCC Thrift and Credit Society V. Ekpo (2000) 17 NWLR (Pt 748) page 649…”

The trial court, therefore, held that the alleged confession and statement by the said Edith, if produced, would have helped to resolve the conflicts in the affidavits of the parties, relating to the assertions by the Appellant in the whole matter, (since she (Edith) was at the centre of this matter and was alleged to be the mistress of Appellant)!

The court added that there is no place for further and better affidavit unless it contains an authentic relevant facts or document with which the court can resolve the conflict in affidavits.
I think the Appellant’s counsel grossly misunderstood that reasoning by the learned trial judge, and went to a very absurd conclusion or interpretation of what the trial court said, when he inferred that the impression conveyed by the remarks of the trial court was that the case of CCC Thrift and Credit Society v. Ekpo (supra) dealt with a situation where a party, after filing an original counter – Affidavit, failed to controvert new facts disclosed in a further and better affidavit!

That was quite an erroneous inference. I think what the trial judge hammered on was that the conflicts in the affidavits of the Appellant and the Respondents, on the involvement of the Respondents in the alleged breaches of Appellant’s fundamental rights, did not require oral evidence to resolve; rather that what was required was for the alleged document (the statement by one Edith to the Police) allegedly linking the Respondents to the Bakassi men, whom Appellant said were acting on the instructions of the Respondents in committing the mayhem and breaches, ought to have been produced; that there is no need for a further affidavit, if it does not contain credible facts or documents with which the trial court can resolve conflicts in existing affidavits.

I think the case of CCC Thrift and Credit Society v. Ekpo (supra) was properly applied by the learned trial judge, to the effect that, it is not only by calling oral evidence that conflicts in affidavit evidence can be resolved, as there may be authentic documentary evidence which supports any of the affidavits in conflict, which is capable of resolving the conflict, if produced.
I think, the reliance which the Appellant placed on the further and better affidavit was misplaced, as the averments, therein, appeared to have no basis, at all, since Appellant did not state how he came by his information in paragraphs 6 to 8 of the further affidavit, relating to the allegation that Respondents engaged the services of the Bakassi men in the course of investigation of the Robbery at the Bank, and the taking of the said Edith to Native doctors by the 1st and 2nd Respondents and the confession by the said Edith (said to be his mistress), or her being cajoled to mention the Appellant and disclose his address to the Bakassi men, See section 115 of the Evidence Act, 2011.

Appellant did not state who gave him the above information, and even when he finally alleged that the said Edith was threatened to confess and mentioned his name and address, and forced, along with one Ndubuisi to lead the Bakassi men to Appellant’s residence, he never joined the said Edith nor Ndubuisi as parties to the suit, and did not call them as witnesses, or obtain affidavit evidence from them, to tell their stories, themselves. See the case of BATNL v. ITC PLC (2012) LPELR 7875 (CA) on the need for joinder of necessary parties of a suit.

And that was why the alleged statement by Edith to the police would have gone a long way to add credence to Appellant’s allegations, if it had been produced, at least, to show the role the Respondents played in the entire evil drama by the alleged invaders and terrorists, called Bakassi men. There is evidence that the alleged Bakassi men had an office where they operated from and that the Appellant visited them in that office and was detained there. Who gave them the office? Where they operating with the authority and support of the State? Why were the Police, who allegedly took statement from the said Edith, not involved in the case to shed some light on the alleged outlawed Bakassi group?

The absence of positive answers to the above questions left much void in the claims of the Appellant and made his story to sound as a fairy tale, founded on hear-say and speculation, as he failed to establish any credible link between the Respondents and the invaders/terrorists-(Bakassi men). A court cannot act on evidence founded on hear-say and speculation, no matter how sordid it sounds to win sympathy. See Usman v. New Nigeria Bank Plc (2013) LPELR 20404 CA.

Since it is obvious that the depositions of the Applicant in paragraphs 5 to 8 of the further – affidavit, referred above, were facts not traceable to the personal belief or knowledge of the Applicant (Appellant), that is, what he personally saw, heard, knew or experienced when, or as they allegedly occurred, the facts deposed to were founded on “hear-say ‘evidence’ which source were not even disclosed by the Appellant. They could therefore not have amounted to any legal link of the Respondents, positively, with the Bakassi men, who did the evil, as having been sponsored or instructed to commit the atrocities.

In the case of Abiodun v. C. J. Kwara State (2007) 18 NWLR (pt. 1065) 109 at 144, it was held by this court, per Ogunwumiju JCA as follows:

“The substance of the affidavit constitutes the evidence before the trial court and its veracity must be as ascertainable as the evidence of a witness on oath in the witness box, giving oral testimony. It is not enough to makes sweeping statements of facts which are not stated to be within the knowledge of the maker, communicated by unnamed person to the maker”

The above ruling, clearly identifies the substance of the averments in the further and better affidavit of the Appellant, in this appeal making it incapable of denying the averments of the Respondents, that they had nothing to do with the alleged Bakassi men, who invaded Appellant’s home and breached his fundamental rights!
I resolve the issue against the Appellant and dismiss the appeal.

IGNATIUS IGWE AGUBE, J.C.A: I have read the draft of the Judgment of my learned brother I. G. Mbaba, JCA, and am in agreement that the Appellant’s Appeal lack merit and should be dismissed.

My Lord has competently and eruditely considered all the Issues at stake in the Appeal and I have nothing more to add. The Judgment of the Learned Trial Judge from which this Appeal emanated is affirmed and I abide by the orders as to Costs.

PETER OLABISI IGE, J.C.A: I agree with the judgment just delivered by my Lord MBABA JCA.

Appearances

Chief Eze Duruihuoma SAN, with him, J. M. E. Onyenakazi Esq and E. O. Ohanaka Esq.For Appellant

AND

D. O. Uruakpa Esq.For Respondent