MAINSTREET BANK & ORS v. MR. OLUGBENGA STEPHEN AMOS & ANOR
(2014)LCN/7386(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/L/789/2011
RATIO
EVIDENCE; BURDEN OF PROOF; THE BURDEN OF PROVING THAT AN ARREST AND DETENTION IS LAWFUL
It is only the authority arresting and detaining that has the burden of proving that such on arrest and detention is lawful. See Iyere vs Doru (1988) 5 NWLR (Pt.44) pg.665, Abiola v. Abacha (1998) 1 HRLRA 453, Jimoh v. AGF (1988) 1 HRLRA pg.513. per. UZO I. NDUKWE-ANYANWU, J.C.A.
PRACTICE AND PROCEDURE: PARTIES TO A PROCEEDING; THE EFFECT OF THE FAILURE OF THE PLAINTIFF TO JOIN THE PERSONS AGAINST WHOM HE IS SEEKING A RELIEF
More especially, the Police or any security operatives have not been made parties in this action.
“Where a Plaintiff fails to join the Persons against whom he is seeking a relief, the action in respect thereof would be struck out on the ground that it is improperly constituted. See: Obla v. Olagoye (2007) 5 NWLR (Pt.1027) pg.304; Ayorinde v. Oni (2000) 2 SC Pg.33. The rule is that persons against whom complaints are made in an action must be made parties to the suit. Mobil Oil Plc. v. D.E.N.R. Ltd (2004) 1 NWLR PT.853 pg.142. per. UZO I. NDUKWE-ANYANWU, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT; WHETHER FUNDAMENTAL RIGHT CANNOT BE USED AS SHIELD TO STALL A CRIMINAL INVESTIGATION
This Fundamental Rights (Enforcement Procedure) cannot be used as a shield to stall a criminal investigation even where the court has found that indeed the Fundamental Rights of the applicant has been breached. It should not debar further investigation and conclusion of the alleged crime.
Where the alleged infraction of a Person’s Fundamental Rights also constitutes a tortuous act, the victim has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate on ordinary civil claim under the relevant rules of court or may invoke the constitutional Procedure under the Fundamental Rights (Enforcement Procedure) Rules. N. U.T vs. COSST (2006) 5 NWLR Pt.974 pg. 590, Onwo v. Okoro & Ors (1996) 6 NWLR (Pt.456) pg.584 at 603, Kokoro-Owo vs. Lagos State Government (1988) 1 HRLRA Pg. 322. per. UZO I. NDUKWE-ANYANWU, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE
The Appellate court does not make a habit of substituting its own views for the views of the trial court. Bashaya vs State (1998) 5 NWLP pt.550 pg.351; Ojokolo v Alanu (1998) 9 NWLP Pt.565 pg. 226; Sha v. Kwena (2000) 5 SC pg. 178.
The evaluation of evidence is the primary function of the trial court, it is only when it fails to evaluate such evidence, otherwise the Appellate court has no business interfering with the finding of the trial court on such evidence. See Adebayo vs. Adusei (2004) 4 NWLR Pt. 862 pg.44. per. UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. MAINSTREET BANK
2. MR. ILORI
3. MR. AHMED
4. MR. NDUBUISI MGBOKO
5. MR. EZEKIEL KOMOLAFE Appellant(s)
AND
1. MR. OLUGBENGA STEPHEN AMOS
2. MRS. ELIZABETH OLUSOLA AMOS Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Lagos delivered on 10th of June, 2011. The Respondents as applicants commenced on action against the Appellants as Respondents under the Fundamental Rights (Enforcement Procedure) Rules 2009 with leave of court. The Respondents claimed the following reliefs.
(a) A Declaration that the forceful detention of the applicants 2 Little children aged 7 and 5 respectively and 2nd applicant being hypertensive without allowing her access to take her drugs at Abuja from 25th August, 2009 to 27th August, 2009 without an order of court and torte constitutes an infringement of the applicants fundamental rights guaranteed and protected by S.35(1), (4) and (5) and 34(1) (a) of the 1999 Constitution.
(b) A declaration that the arrest or continued threatened arrest, harassment, intimidation, extortion and detention of the 2nd applicants without an order of court and torture constitutes an infringement of the applicants fundamental rights guaranteed and protected by S.35(1), (4) and (5) 34(1) (a) of the 1999 Constitution
(c) A mandatory order restraining the Respondents from further harassment intimidation, official extortion and all manner of vindictiveness on the paths of the applicants forthwith.
(d) An immediate return of the applicant’s title deeds to his property, car seized, Sony Laptop belonging to the applicants wife and a refund of the sum of N194,890.00 which the Respondents forcefully taken from the applicants car when same was forcefully opened by a motor mechanic, applicants August salary, education allowance and some cash belonging to full Gospel Business Fellowship, payment of the mandatory half salary payable to staff on suspension-
(e) A return and or release of all the items such as applicants title deeds to his property, car seized Laptop belonging to the applicants, the sum of N194,890.00 which the Respondents forcefully took from the 1st applicants car when same was forcefully opened, 1st applicants August salary, education allowance and some cash belonging to full Gospel Business Fellowship, payment of the mandatory half salary payable to staff on suspension which the 1st- 5th Respondents fraudulently seized from the applicants during the needless period of incarceration and cold war.
(f) N2,000,000.00 against the Respondent jointly and or severally on the footing of exemplary damages for the unwarranted infringement of the applicants fundamental rights.
(g) A mandatory order commanding the Respondents jointly and or severally to deliver an apology in writing to the applicant for the unwarranted infringement of his fundamental rights.”
In response to the above Process, the Appellants as Respondents in the Lower Court, filed a counter affidavit dated 25th day of February, 2010 (see Pages 63-87 of record) wherein reliance was placed on the seventeen paragraphs counter-affidavit deposed to therein by one Ilori Tolulope a senior manager in the inspection deportment of the 1st Respondents Regional Office of Abuja, with seven annexures thereto attached as Exhibits ILOI-IL07, denying all allegation of infringement of the applicants’ Fundamental Rights.
The facts of this case are as simply put; the 1st Respondent was working for the 1st Appellant. The 2nd Respondent is the wife of the 1st Respondent. The 1st Respondent was sometime accused of some fraudulent acts in his day to day employment with the 1st Appellant’s branch in Suleja. An investigation was said to have ensued and many fraudulent practices were uncovered. During the investigation, the 1st Respondent said he was threatened and bullied, His wife the 2nd Respondent was detained so also were their two young daughters. For the above the 1st and 2nd Respondent sued the Appellants. The parties filed their affidavits and their written addresses. The trial Judge thereafter delivered its considered judgment and held as follows:-
“Based on all the foregoing analysis, the inevitable conclusion which I reach on this matter is that the Applicants have made out a case for the infringement of their fundamental rights. The application therefore succeeds and I accordingly award the sum of three hundred thousand Naira (N300,000.00) against the Respondents jointly and severally for the infringement of the Applicants’ fundamental rights.”
Being dissatisfied, the Appellants filed their notice and two grounds of appeal. The Appellants filed their Appellants’ brief on 25th of August 2011 and articulated two issues for determination namely: –
“Whether the Lower Court (Federal High Court) Lagos Division per the judgment of Justice P. I. Ajoku dated 10th June, 2011 is right in holding that the Respondents (applicants) reliefs sought are maintainable i.e. under the Fundamental Rights (Enforcement Procedure) rules, 2009.
(DISTILL FROM GROUND 1)
Whether the contents of the Respondents counter-affidavit dated 25th day of February, 2011 before the Lower Court, paragraph 11, thereof, did not positively deny the applicants averments as regards its paragraphs 18 of their affidavit in support of motion in Notice dated 25th day of January, 2010 (see Pages 33-36 of record).
(DISTILL FROM GROUND 2)
The Respondents filed their brief on 13th of September 2011 and articulated two issues namely:
“1. Whether the Respondents herein are not entitled to the reliefs granted at the Lower Court having regard to the untold hardship, needless incarceration, threatened arrest harassment, intimidation, extortion and forceful detention meted out by the Appellants/Respondents.
2. Whether this court substitutes its discretion for that of the Lower Court which was judiciously and judicially exercise, especially when same has not occasioned a miscarriage of justice.”
I will use the issues articulated by both parties to resolve this appeal.
ISSUE 1
The learned counsel to the Appellants submitted that the alleged infringement canvassed by the Respondents in the Lower Court was said to be a breach of S.35(1), (4) and (5) and S.34(1) of the 1999 Constitution. None of the facts of this as disclosed in the affidavits fall within the reliefs to be brought under the Fundamental Rights (Enforcement Procedure) Rules 2009. Counsel argued that the jurisdiction of the court is determined by the Applicants claims and reliefs sought. See: Western Steel Works Limited vs. Iron & Steel Work Union of Nigeria Opeyeni (1987) 1 NWLR (Pt.49) paragraph 284; Tukur v. Governor of Gongola State (1999) 4 NWLR (Pt.117) pg. 517; Adeyemi v. Opeyemi (1976) 9 – 10 S.C pg.31.
Counsel argued that reliefs A, B, and C are reliefs on the tort of false imprisonment or wrongful confinement, assault and battery. Reliefs B, part of relief D and E are within the tort of trespass to chattel on goods as well as detinue, master servant, relationship, the latter on exclusive Preserve of the National Industrial Court. Also reliefs F and G are in the realm of an action in tort.
Learned counsel argued that the reliefs claimed by the applicants are ones on tort and not on Fundamental Rights (Enforcement Procedure) Rules 2009.
The tortuous claims are the principal claims and not those incident to Fundamental Rights claim. See: Hamed vs. Talal Akar (2006) 13 NWLR (Pt.996) pg.136.
Counsel argued that the principle laid down in Madukolu vs. Nkendilim (1962) All NLR (Pt.2) pg. 587 is that on action is initiated by due process of law. In this case this action should have been initiated by a writ of summons as this case is one on tort. Counsel therefore urged the court to resolve this issue on behalf of the Appellants.
ISSUE 2
The Appellants’ counsel submitted that they denied the averments of the Respondents in paragraph 11 of their counter affidavit and put the Respondents to the strictest proof. See: A. C. E. Jimona Ltd v. Nigeria Electrical Contracting Co. Ltd. (1976) 1 All NLR Pg.122 where the Supreme Court held:
“That the denial of a particular Paragraph by way of the general traverse, (while not conceding to the Lower Court holding) see pages 191- 199, particularly page 196 of record, had the same effect as a specific denial of it and the effect is solely to put the party making it to proof of the allegation in that paragraph in the instance case been affidavit evidence, the Lower Court ought to have called for oral evidence before making the holding which it fail to do – See: Gbadamosi v. Alete (1998) 12 NWLR Pt.579, 402 CA.
Counsel urged the court to resolve issue two on behalf of the Appellants.
In response, the learned counsel to the Respondents submitted that for an applicant to succeed in on action for infringement of his Fundamental rights, he must place before the court all vital evidence. See Fajemirokun v. CB (LI) (Nig) Ltd. (2002) 10 NWLR Pt.774 Pg.95. Counsel recognizes that the onus of proving these infringements was on the applicants. The applicants had to prove that they were arrested and detained and that the Respondents set the law in motion against them See: Ezeadukwa v. Maduka (1997) 8 NWLR Pt.518 Pg.635.
Counsel submitted that the Appellants arrested, tortured, extorted and humiliated the Respondents by arresting them and their children without the order of court or any lawful justification. Counsel stated that the Appellants conspired to nail the Respondents. They did so when the Police under the instigation of the 4th Appellant arrested the Respondents’ 2 children and seized all their properties as though the Respondents actually committed the alleged offences. Moreso, the Respondents were detained in Suleja and Abuja, and also psychologically detained and tortured in Lagos at the Head Office of the 1st Appellants.
The Respondents agree that the 1st – 5th Appellants and their Police Officers are at liberty to investigate any crime reported to them.
Counsel also submitted that an appellate court cannot substitute the discretion of the Lower Court judiciously and judicially exercised with its own. Counsel stated that the Appellants did not fault the judgment of the trial court and they never reported to the Police. The learned counsel argued that the Appellants took the laws into their own hands breaking the rules of “Nemo judex incausa sua”. Counsel went on to state that
“An Appeal court can only intervene to set the decision arrived of by the trial court aside, when and only when the trial court failed to make good use of advantages it had particularly in a case where credibility is not involved” See Ngillari v. Nicon (1998) 8 NWLR (PT.560) Pg.1 Okpata vs. Uneh (1976) 9 – 10 SC Pg. 269, Ebba vs. Ogodo (1984) 1 SCNLR Pg.372; Alogbe vs. Shorun (1985) 1 NWLR Pt.2 Pg.360
Counsel therefore urged the court to resolve these issues in favour of the Respondents.
The Respondents in this appeal as applicants in the court below brought on action under the Fundamental Rights (Enforcement Procedure) Rules 2009. The Respondents urged the court to hold that their fundamental rights have been breached by the Appellants/respondents in the court below.
In a case fought on affidavit evidence, the court expects the parties to place before the court all the relevant facts in proof of their case. The Respondents are well aware of this.
See: Fajemirokun v. CBCI (Nig) Ltd. (supra)
The Respondents stated that they placed vital evidence regarding the infringement or breach of their rights under the 1999 Constitution. Respondents also stated that the onus was on an applicant who alleges that he was arrested and detained to show that the Respondents set the law in motion against him and that the Appellants’ were instrumental to his arrest and detention. Ezeadukwa vs. Maduka (supra)
The 1st Respondent had alleged that his rights, that of his wife and two daughters had been breached. The 1st respondent was on employee of the 1st Appellant in its Suleja Branch. The 1st Respondent said that inspectors i.e. 2nd – 5th Appellants come to investigate him on account of on alleged fraud. 1st Respondent also claimed that the 2nd Respondent was dictating a statement for him to write. Also that the 2nd – 5th Applicants made the Suleja Branch ungovernable for them that day that the 1st Respondent had to direct all their customers to a sister branch for their transactions devoid of any molestations. Part of the 1st Respondents affidavit is repeated here under for ease of reference:
11. “That the 2nd – 5th Respondent made the branch so ungovernable for us that day that I had to direct all our customers to a sister branch for their transactions devoid of any molestations.
12. That meanwhile, as I went to my car to drop my august salary and Child Education allowance I earlier withdrew from my account in the morning for my wife’s pressing needs, a security man had waited to inform me he had been instructed to debar me from moving out of the banking premises.
13. That before the security man could finish with me, I heard the 4th Respondent ordering the Police to shoot my legs demobilize me in case I wanted escape.
14. That when I sensed that the Respondent might hatch their plans into action thereby losing my precious life, I used wisdom to snick (sic) out to the IBB market lest I should die for nothing.
15. That I was scared stiff when what looked like a joke turned out to be trumped up allegation of Fraud and even in my hiding nearby, I watched all the activities of the Respondents vis-a-vis confiscation of my car and emptying same of all valuables therein including all the money.
16. That afterwards, the 4th went straight to my house wherein he dragged and forced my two daughters Olusayo and Olutayo aged 7 and 5 respectively to a waiting car and whisked them away to an unknown destination not minding the pleas of the well meaning people in the neighborhood.”
The 1st Respondent in his affidavit said himself that he sneaked out of the branch and watched from his hiding place. The 1st Respondents is being investigated for an alleged fraud and he was not in his branch. He claimed the 2nd Appellant had ordered the Police to shoot of him if he tries to leave the branch of 1st Appellant. Did he escape from the watchful eyes of the Bank Security and Policemen?
The 2nd Appellant in his counter affidavit paragraph 16 averred that the matter had been reported to EFCC and that the 1st Respondent had not reported to them and he is still on the run. The 1st Respondent who is the principal actor has not been able to tell what happened to him personally in this whole saga.
The 1st Respondent said himself that inspectors came to his branch. He himself said he escaped from the branch and was in a vantage spot in IBB Market looking in, to see what was happening. Why didn’t he stay to face the music? Is it possible that the 2nd Appellant ordered the Policemen in the Bank premises to shoot of him to demobilize him if he tried to escape? But he did escape from his own affidavit. See paragraph 14 of the 1st Respondent’s affidavit.
“That when I sensed that the Respondent night hatch their plans into action thereby losing my precious life, I used wisdom to snick (sic) out to the IBB market lest I should die for nothing.”
The only thing I can decipher from the affidavit of the 1st Respondent is in paragraph 8 to show what was done to him.
“That as if that was not enough, they requested me to produce the captured vouchers of 2nd and 25th February, 2009 but would not allow me do it before they started calling me a thief among other unprintable names without telling me what my offence was.”
The 1st Respondent had claimed that the 4th Appellant went to his house. The 1st Respondent was not in his house and therefore cannot say for certain who went to his house. The 1st Respondent has not been to any Police Station. He had not been arrested nor detained by any person.
Apart from stating in paragraph 18 that his two daughters were taken away to an unknown destination and held for 8 hours, nothing else was done to any of them. The 1st Respondent did not report this incident to the Police. The 1st Respondent also said that his wife was detained without her medication. If one is arrested and detained, for these allegations to be authentic, the time of arrest should be noted and the duration of detention must be identified. How does a court hold that an arrest and detention were illegal without these facts? It is not clear from the affidavit in support of the Respondents where and when, what happened. It is not clear who amongst the Appellants did what, where and when. The Respondents claim they were detained but did not say where they were detained. Was it in the Police Station or of the office of the 1st Respondent? From the counter affidavit of the 2nd Appellant, the 1st Respondent has not been arrested nor detained by anybody. The 1st Respondent is still on the run. The 2nd Appellant said the matter has been reported to the EFCC.
The Appellants had acted within their legitimate rights to report the alleged fraud to the EFCC.
Gbajor vs. Ugunburegun (1961) All NLR Pt. IV pg.853, BWA Ltd v. Odiatu (1962) All NLR P.g.625 where in the court held:-
“It is the duty and the right of every citizen to bring to the notice of the Police, either report or a specific complaint made against a person who is suspected or alleged to have committed offences and it is for the police to decide what action they should taken on the report or complaint.”
What has the Appellants done wrong? They went for investigation to the 1st Respondent’s branch. Before much could be done, the 1st Respondent escaped! He did not stay to face the investigation. How was his fundamental rights infringed? The 1st Respondent claimed that the 2nd Appellant was dictating to him what to write in his own statement. How possible is this assertion when he escaped from the bank branch in Suleja. Why didn’t he call in the Police? There is nowhere in the gamut of affidavits and documents was the Police called in. It was only in the Respondents’ brief, was it mentioned that the Police arrested the Respondents’ two children? Was it the Police or the Appellants that arrested the Respondents’ two children? It is not clear who did what.
The 1st Respondents in his affidavit averred that the 4th Appellant went straight to his house and dragged the two little girls out and took them away. The 2nd Appellant denied this averment and put the 1st respondent to the strictest proof of it. The 1st Respondent did not offer any more proof of these facts.
The 2nd Appellant in his affidavit averred what their investigation revealed of the alleged fraud. It is averred in paragraph 9. It is captured hereunder for case of reference.
“That in answer to the 1st applicant averment in its Paragraph 15 thereof, I say that in the course of our snap check investigation, the 1st applicant was found to have committed the following fraud, amongst others that are been unearthed as the investigation continues till date namely:
i. Took money from the vault the vault and destroyed vouchers so that it could not be trace, using the Branch Chief Security Officer, attached herewith, is a covering letter from the branch manager attaching the Chief Security Officers statement to that effect to the Regional manager Abuja, as Exhibit ILO3.
ii. Manipulated various entries by capturing one leg and leaving out the other leg.
iii. He made bank drafts on fictitious accounts and paid same into his wife Business name account with other Banks who incidentally is the 2nd applicant in this suit, attached herewith are two of such drafts in the name of the 2nd applicant Business name marked as EXHIBIT ILO4A & B. The 2nd Applicant maintains a business name and account in that name as KINGSBERG ENTERPRISES, a fact admitted in paragraph 23 of its affidavit in support of his motion on Notice.
iv. He reverse some cash lodgments into PHCN account and other customers accounts, friends, relations e.g. Royal ceramics, made cash express to one of his relation by way of transfer named major Dele Arogundade, marked as EXHIBTTS IL05 and IL06, are the PHCN PAY DIRECT and cash express Debit Vouchers.
v. He reactivated some customer’s dormant account and transferred money to those accounts, thereby operating the accounts, as if it was the customer operating those accounts. Using the password of some staffs, which he collected on the pre of having been mandated from Head Office, most of the transactions were done after 5:30pm.
10. That further criminal and fraudulent acts committed against the 1st applicant in conspiracy with the 2nd applicant are as captured in a document initial by the 1st Respondent chief inspector title findings, herewith marked as EXHIBIT IL07.”
The Respondents agree that for an applicant to succeed in an action alleging infringement of his fundamental rights, the applicant must place before the court all vital evidence regarding the infringement or breach of such rights See Fajemirokun vs. CB (CL) (Nig.) Ltd (supra). The Respondents were unable to show precisely what happened.
The Respondents also recognized that they had to prove that they were arrested and detained and that it was the Appellants who set the law in motion against them. See Ezeadukwu vs. Maduka (supra)
The 2nd – 5th Appellants as an investigating team from the head office of the 1st Appellant had to conduct their own investigation before calling in the Police or any other investigating authority. It would have been after this that a report was made to EFCC.
The Appellants had reported this alleged fraud to EFCC. Up till this time the 1st Respondent had failed to report to the EFCC. In the words of the 2nd Appellant, the 1st Respondents is still on the run.
The learned trial Judge saw this, very differently. He held as follows:-
I dare say that even if the 1st and 2nd Applicants have committed a criminal offence, how it affects their young children of 5 and 7 years respectively who were allegedly detained by the Respondents.
I must say that the acts of the Respondent is nothing but despicable to say the least. This is further confirmed by paragraphs 13 and 16 of their counter affidavit to the effect that it “has reported the 1st Applicant to the EFCC, who are on the hunt for him, as he is on the run.”
This is like putting the cart before the horse. The Respondents responsibility ought to have started and ended with reporting the alleged offence to the EFCC instead of embarking on the investigation of their own. It is therefore wrong to report to the EFCC after illegally doing the work of the Law Enforcement Agencies and it is my humble view that the acts of the Respondents amounted to breach of the fundamental right of the Applicants. ”
The question of arrest and detention of the Respondents had not been made clear in the 1st Respondent’s affidavit in support. The date, time and duration of the 2nd Respondent’s arrest and detention has not been placed before the court. It is normal for someone to be arrested during investigation of a crime. The Police or any other investigating body may arrest a suspect in furtherance of their investigation. If the person arrested is detained unduly then that becomes unlawful.
The Respondents hove not therefore specifically stated who detained their daughters and the 2nd Respondent. It is only the authority arresting and detaining that has the burden of proving that such on arrest and detention is lawful. See Iyere vs Doru (1988) 5 NWLR (Pt.44) pg.665, Abiola v. Abacha (1998) 1 HRLRA 453, Jimoh v. AGF (1988) 1 HRLRA pg.513.
In this appeal the 1st and 2nd Respondent hove not specifically averred, the role of the Police or any security operatives in this case. More especially, the Police or any security operatives have not been made parties in this action.
“Where a Plaintiff fails to join the Persons against whom he is seeking a relief, the action in respect thereof would be struck out on the ground that it is improperly constituted. See: Obla v. Olagoye (2007) 5 NWLR (Pt.1027) pg.304; Ayorinde v. Oni (2000) 2 SC Pg.33. The rule is that persons against whom complaints are made in an action must be made parties to the suit. Mobil Oil Plc. v. D.E.N.R. Ltd (2004) 1 NWLR PT.853 pg.142.
The Respondents have accused the Appellants of infringing on their Fundamental Rights without proof.
From the counter affidavit of the 2nd Appellant paragraphs 9-10 show that there was a reasonable suspicion that the Respondents may have committed the offence.
“An arrest properly made cannot constitute a breach of fundamental Rights. A citizen who is arrested by the Police in the legitimate exercise of their duty and on grounds of Reasonable suspicion of having committed an offence cannot sue the Police in court for the breach of his fundamental Rights”
Okaro v. Commissioner of Police and Anor (2001) 1 CHR Pg.407.
The Respondents in this appeal hove not stated categorically with proof what the Appellants hove done wrong. The 1st Respondent bolted away from the office on the arrival of 2nd – 5th Appellants. Since then he has been on the run.
The onus is on the Respondents to show that the appellant set the law in motion against them. Ezeadukwu v. Maduka (Supra) Sadly the Respondents hove not proved these allegations against the appellants.
A line must be drawn from the people who are running away from facing alleged criminal investigation and those whose Fundamental Rights have actually been breached. A man who is being investigated for an alleged crime is arrested and probably detained: He runs to the court alleging that his Fundamental Rights have been breached.
The investigation thereafter is stalled while parties are awaiting the outcome of the action on Fundamental Rights.
This Fundamental Rights (Enforcement Procedure) cannot be used as a shield to stall a criminal investigation even where the court has found that indeed the Fundamental Rights of the applicant has been breached. It should not debar further investigation and conclusion of the alleged crime.
Where the alleged infraction of a Person’s Fundamental Rights also constitutes a tortuous act, the victim has a right of election in respect of the procedure to be adopted for obtaining redress. He may either initiate on ordinary civil claim under the relevant rules of court or may invoke the constitutional Procedure under the Fundamental Rights (Enforcement Procedure) Rules. N. U.T vs. COSST (2006) 5 NWLR Pt.974 pg. 590, Onwo v. Okoro & Ors (1996) 6 NWLR (Pt.456) pg.584 at 603, Kokoro-Owo vs. Lagos State Government (1988) 1 HRLRA Pg. 322.
I therefore hold that the reliefs sought by the Respondent can be maintained under the Fundamental Rights (Enforcement Procedure) Rules 2009 but the Respondents had not placed enough vital evidence in support of their claims.
This issue is therefore resolved against the Respondents.
ISSUE 2
I had already discussed at length the affidavits of the Respondents and the counter affidavit of the Appellants. I have in the reasoning in issue one held that, the 2nd Appellant had made sufficient traverse of the averments of the Respondents.
The Respondents in their affidavit averred that their two daughters were arrested and detained. The 2nd Appellant in his counter affidavit denied this averment and put the Respondents to the strictest proof.
A fact contained in the affidavit cannot be deemed admitted if it is either expressly or by necessary implication denied See: Adegboyega v. Awe (1993) 3 NWLR Pt.280 pg.224.
In the present appeal, the 2nd Appellant traversed this issue of arrest and detention. There was no further or better affidavit by the Respondents to reply to this traverse by the Appellants. The Respondent alleged that their two little daughters were arrested and detained for eight hours. It is not known who arrested them. The two little girls are not parties in this action. It is trite law that the trial court can permit a single application for the enforcement of the Rights of the Respondents and their daughters but of least they should be made parties even if their parents are representing them. See: Ogwuche & Ors. v. University of Agriculture Makurdi & Ors. 2 NPILR pg.809 Sadiku & 35 Ors v. Obafemi Awolowo University, Ife 2 NPILR pg.809.
The Respondents have urged this court not to substitute the finding of facts by the trial court with its own. The Appellate court does not make a habit of substituting its own views for the views of the trial court. Bashaya vs State (1998) 5 NWLP pt.550 pg.351; Ojokolo v Alanu (1998) 9 NWLP Pt.565 pg. 226; Sha v. Kwena (2000) 5 SC pg. 178.
The evaluation of evidence is the primary function of the trial court, it is only when it fails to evaluate such evidence, otherwise the Appellate court has no business interfering with the finding of the trial court on such evidence. See Adebayo vs. Adusei (2004) 4 NWLR Pt. 862 pg.44.
In the instant case, the trial court had failed to evaluate the affidavit evidence placed before it. The averments in support of the Respondents’ application are if token together are not sufficient to sustain the Respondents’ prayers of the trial court. In a case fought on affidavit evidence, the Applicant, in order to obtain judgment must prove by affidavit the reliefs sought in the Application otherwise, the application must fail.
“In a case fought on affidavit evidence, the plaintiff, in order to obtain judgment must prove by affidavit the reliefs sought in the Statement of claim, otherwise the action will fail. For example, it is not enough for a plaintiff who seeks a constitutional remedy or a remedy under the constitution by merely parading before the court the constitutional provisions. He must prove, by affidavit that he deserves the remedy sought. The court can only give the plaintiff judgment if the facts deposed to in the affidavit vindicate the remedy sought. A mere agglomeration of facts which do not vindicate or justify the remedy sought will not give rise to a judgment in favour of the plaintiff. Similarly, the affidavit evidence which would strengthen the facts or stories averred in the pleadings should be cogent and substantial to create in the mind of the court a relief that the plaintiff has established the assertion contended by a party.”
A.G. Anambra State v. A.G.F. (2005) 9 NWLR (Pt.931) pg.572
The Respondents have not been able to prove their claims from their affidavit evidence and as such their claims must fail.
This appeal is meritorious. It is, therefore, allowed. The judgment of the Federal High Court delivered on 10th of June, 2011 and the orders contained therein are hereby set aside. I make no orders as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother U. I. Ndukwe-Anyanwu JCA had afforded me the opportunity to read in draft, the lead judgment just delivered.
I am in complete agreement with the reasoning and conclusion contained therein.
For the same reasons articulated in the said lead judgment which I adopt as mine. I also hold that this appeal has merit and it is accordingly allowed. The judgment of the Lower Court delivered on 10th June 2011 is hereby set aside.
I also make no order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the judgment delivered by my learned brother Ndukwe-Anyanwu JCA. I agree with the reasoning and conclusions therein.
I also allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
P. H. MallongFor Appellant
AND
T. Ochen (Mrs.)For Respondent
