BARRISTER RICHARD UMOREN & ANOR v. MR. IDONGESIT JAPHET UDOKPONG & ANOR
(2019)LCN/12828(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/195/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“A Court in evaluation of evidence must take into consideration every little aspect of it and the surrounding factors. It is not for the judge to accept evidence hook line and sinker without weighing its preponderance and probability. See AJAGBE V IDOWU (2011) LPELR 279.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
FUNDAMENTAL RIGHT: WHERE THERE IS A BREACH
“It was held in plethora of judicial decisions that once there is a threatened breach of the fundamental right of the citizen, a cause of action arises under the Fundamental Rights Enforcement procedure Rules and the citizen need not tarry or wait until the actual breach before seeking for redress. See JACK V UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (pt 865) 208, OLUTOLA V UNIVERSITY OF ILORIN (2004) 18 NWLR (pt 905) 416, ZAKARI V IGP (2000) 8 NWLR (pt 670) 666 and MBADIKE & ORS V LAGOS IN?L TRADE FAIR COMPLEX MANAGEMENT BOARD & ORS (2017) LPELR 41968. However, the onus is on the person alleging a breach of his Fundamental Right to prove same by cogent and credible evidence. See FAJEMIROKUN V COMMERCIAL BANK (CREDIT LYONIYALS ) NIG. LTD & ANOR (2009) 5 NWLR (pt 1135) 558 at 600. Then the question as to whether the respondents were entitled to the declaratory reliefs granted in their favour by the lower Court are dependent on whether they proved same by cogent and credible evidence.” PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. BARRISTER RICHARD UMOREN
2. ENGR. EFFIONG UMOREN – Appellant(s)
AND
1. MR. IDONGESIT JAPHET UDOKPONG
2. CHIEF KINGSLEY OFFIONG UDO – Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Akwa Ibom State delivered on the 16th of December, 2016 by Hon. Justice, Iboro I. Ukpana wherein the Court below entered judgment in favour of the respondents and against the appellants herein at pages 89 – 90 of the record of appeal thus:-
Finally, I hold that this application succeeds and is granted. It is hereby ordered as follows:-
1. That the Respondents their then agents or servant are hereby restrained from further violation of the rights of the applicants based on the facts of this case.
2. That the Respondents shall jointly and severally pay the sum of Two Hundred Thousand Naira (N200,000.00) to the Applicants for violating their right to the dignity of their persons.
3. That the Respondents shall pay cost of N50,000.00 to the Applicants.?
Miffed by the above, appellants filed this appeal by filing a Notice of Appeal on 5th January, 2017. The notice of appeal contains two grounds of appeal.
Briefs of argument were filed and exchanged. Appellants formulated two issues for determination as follows:-
1. Whether the judgment of the trial Court can be justified based on the evidence on record? (Distilled from ground 1).
2. Whether the learned trial judge did not err in law when he failed to invite the parties to address the Court on the issue of mental torture which was never raised or canvassed by any of the parties but by the Court suo ? moto? (Distilled from ground 2).
On the part of the respondent, a lone issue was formulated for determination thus:-
Whether the Court below was right to enter judgment for the Respondents based on the appellants? incessant and persistent phone calls on the Respondents and other pieces of evidence available to the Court.
Before proceeding to consider the argument of learned counsel on the above issues, it is pertinent to albeit briefly state the facts of the case as encapsulated in the appellants? brief of argument.
That the 1st Respondent met and indicated to the appellants that he had a piece of land located at Ikot Oduot Ibesikpo in Ibesikpo Asutan Local Government Area of Akwa Ibom State to sell.
The 2nd appellant who was desirous of building a petrol filing station indicated his interest to buy the said piece of land. The 2nd appellant then instructed his solicitor who is the 1st appellant to liaise with the 1st respondent for the purpose of purchasing the said piece of land.
The land was subsequently purchased by the 2nd appellant and upon payment, the 1st respondent produced approvals for proposed filling station from Akwa Ibom State Fire Service and Nigeria Police but could not produce approval from Uyo Capital City Development Authority. Thus, the 2nd appellant had to bear the extra costs of securing approvals from Uyo Capital City Development Authority, Directorate of Petroleum Department and other agencies which gulped the sum of N3 million. In view of the above, the 1st respondent agreed to pay to the 2nd appellant the sum of N900,000.00 to offset part of the additional cost before he evacuate his 2 storage tanks that was deposited on the land. When the 2nd appellant wanted to commence construction work on the site he moved the 2 storage tanks to the opposite side of the land close to the compound of 2nd respondent. That the 2nd appellant appealed to the 2nd respondent to collect the said N900,000.00 from the 1st respondent before allowing him to take away the 2 storage tank.
The 1st respondent rather than paying the said N900,000.00 he tricked the 2nd respondent that he had obtained the permission of the 2nd appellant to carry the tanks and went away with them without paying the said money. When the 2nd appellant called the 1st respondent on phone to demand for the money, he refused to pay and immediately commenced a fundamental right action against the appellants, alleging various infractions.
Proffering argument on his first issue, learned appellants? counsel Unyime D. Itat, Esq., contended that the judgment of the trial Court cannot be justified based on the evidence on record. He further contended that none of the appellants subjected the respondents to torture or to inhuman or degrading treatment vide a telephone call. Also the evidence did not show that the respondents complained that any of the appellants subjected them to any mental torture by the phone calls. He submitted that a judge is always enjoined to confine himself the pleadings and or evidence before him and not to go outside the ambit of the case presented by the parties. ?
He refers toA. S. H. A v TIJJANI (2012) 8 NWLR (pt 1303) 483 and OBI V AG, IMO STATE (2016) 3 NWLR (pt 1500) 425 at 435 to the effect that it is not permissible for a trial Court to descend into the arena of conflict in a trial to generate evidence or facts not canvassed or adduced by witnesses.
Still in argument, learned counsel submitted that since the finding of fact of the trial Court to the effect that phone calls of the appellants to the respondents demanding for payment amounted to mental torture was not supported by any evidence before it, the said findings are perverse and unreasonable. He referred to MAINSTREET BANK (NIG) PLC V EGWU (2015) 15 NWLR (pt 1482) 336 at 351.
On the second issue, learned counsel contended that the learned trial judge erred for failing to invite the parties to address the Court on the issue of mental torture raised suo motu. He relied on the decisions in the cases of UZOHO V NATIONAL COUNCIL ON PRIVATIZATION (2007) 10 NWLR (pt 1042) 320 at 345, OJE V BABALOLA (1991) 4 NWLR (pt 185) 267, NSIEGBE V MGBEMENA (2007) 10 NWLR (pt 1042) 364 at 369 and TRADE BANK PLC V CHAMI (2003) 13 NWLR (pt 836) 158 at 181 in submitting that where a Court raises and decides on an issue without hearing from the parties before it, it amounts to breach of the parties? fundamental right to fair hearing.
He finally urged this Court to invoke its general powers under Section 15 of the Court of Appeal Act to rehear the case in whole.
On the lone issue formulated for the respondents, learned counsel for the respondents, Godwin Udofia, Esq., referred this Court to the averments in paragraphs 9 and 10 of the affidavit in support of the motion and paragraphs 10, 14 and 16 of the Further affidavit of the 1st applicant and contended that the incessant phone calls of the appellants were so dehumanizing to the extent that the respondents were compelled to go into hiding to escape imminent threat of arrest and detention for an offence they did not commit. He submitted that by virtue of Section 46 (1) of the 1999 Constitution, the respondents did not have to wait for the appellants to actualize physical harm against them and thus the trial Court was right in holding the appellants liable for flagrant violation of the respondents? fundamental rights.
In further argument, learned counsel submitted that the phrase ‘mental torture’ used by the learned trial judge in the judgment now on appeal though not used by parties in the exact words but same explained the effect of the appellants’ incessant phone calls and threats on the respondent. Thus mental torture was well established by preponderance of evidence before the lower Court, concluded learned counsel for the respondents.
I have carefully considered the argument of learned counsel as well as the contents of the record of appeal. The two sets of issues are seemingly the same but the two issues formulated by the appellants are apt, brief and concise. I shall therefore adopt same in considering this appeal.
Before proceeding to consider the appeal, it is pertinent to take a swift on the appellant?s reply brief deemed filed on 23/1/2019. A perusal of the said reply brief reveals that same is nothing but an improvement of the main brief. It is settled that a reply brief should always be an answer to new and substantial point arising from the respondent?s brief.
The appellants on their first issue questions the findings of the lower Court contending that the judgment cannot be justified considering the evidence made available to it.
The fundamental rights the respondents were seeking to enforce are the right to dignity of human person and personal liberty guaranteed by Sections 34 (1) and 35 (1) of the 1999 Constitution (as amended). The sections provide as follows:-
34 (1) – Every individual is entitled to respect for dignity of his person, and accordingly –
(a) No person shall be subjected to torture or inhuman or degrading treatment,
(b) No person shall be required to perform forced or compulsory labour.
35 (1) – Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with procedure permitted by law.
The plank of the respondents’ case are stated in paragraphs 7 – 10 of the affidavit in support the motion at pages 5 – 7 of the record of appeal as follows:-
7. That the Respondents took full possession and control of the land after executing the Power of Attorney and payment of the purchase price for the land. Sometime about October, 2014 when I went to the land to evacuate my two giant storage tanks, I saw traditionally injunction placed on the tanks. The 2nd Respondent?s workmen referred me to the 2nd Applicant. The 2nd Applicant informed me that the Respondents were accusing me of deceiving them into buying the land which they (the respondents) could not obtain approval for the 2nd Respondent?s petrol (filling) station, therefore the Respondents had demanded that I should refund the purchase price of the land to them in the sum of N16,000,000.00 (Sixteen Million Naira). There and then the 2nd Respondent called me on phone and abused him thoroughly and ordered the me to return the money he paid me for the land because he ? the 2nd Respondent could not secure approval for his filling station which he wanted to build on the land. In the alternative, the 2nd respondent ordered me to pay to him the sum of N3,000,000.00 (Three Million Naira) being the amount the 2nd respondent needed to pay to secure the approval.
I told the 2nd respondents that I had no money at all to refund or pay to him under any guise. I left without carrying my tanks from the 2nd respondent’s land. Before I sold the land to the 2nd respondent as aforesaid I had applied for and obtained approvals from both the police and Akwa Ibom State Fire Service to site a Petrol/Filling Station on the land. The copies of the said approvals are hereby exhibited and marked as Exhibits A and B respectively.
8. That however, the 2nd Respondent called me later and asked me to pay to him the sum of N900,000.00 (Nine Hundred Thousand Naira) only instead of N3,000,000.00 as part of the approval money and I still insisted that I had no such amount of money to pay to the 2nd Respondent. After that, the 2nd respondent was fun of calling me up on phone, abusing and cursing me. I had decided to gloss over my two storage tanks in the 2nd respondent?s land until about Monday, June 20, 2016 when the 2nd respondent called me on phone to proceed to the 2nd Applicant?s premises at Ikot Oduot to evacuate my storage tanks. The 2nd respondent further directed me to call him ? 2nd respondent on phone should I encounter any resistance in evacuating the tanks. Surprisingly, when I got to the 2nd Applicant?s premises I met the tanks partly damaged by the agents of the 2nd respondent and when they moved them to the 2nd Applicant?s premises and within two days, I was able to evacuate my tanks from the 2nd applicant?s premises without any hindrance.
9. That about Friday, June 24, 2016 in the afternoon, the 2nd respondent called me on phone and demanded to know whether I had ‘paid in the money’ and I sought to know what money the 2nd respondent meant and the 2nd respondent abused, cursed and threatened to deal with me should I fail to pay the sum of N900,000.00 (Nine Hundred Thousand) to him before the close of work on Monday, June 27, 2016. Not long afterwards, the 1st respondent also called me on phone and said should I fail to pay the money as demanded on or before Monday June 27, 2016, the 2nd respondent would arrive with some policemen from Abuja to bundle me to Abuja. He went on to inform me that the 2nd respondent is too influential to use local police from Akwa Ibom Command or the Zone 6 headquarters’ Calabar.
This has driven fear into me as I have no money to pay to the respondents.
10. That the continued harassment intimidation, threats of imminent arrest of us the Applicants, particularly myself has weakened, frightened and caused me to go into hiding for committing no offence and my safety is not guaranteed; more so the 2nd respondent is a man of stupendous wealth and influence who can give effect to his running threats. Wherefore, the respondents by their continued threats to arrest and detain us with police from Abuja; constant phone calls abusing, cursing, harassing and intimidating us have grossly violated the Section 34 and 35 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), hence this application.
Also in paragraphs 11 and 12 of the Further affidavit of 2nd respondent at pages 47 ? 48 of the record of appeal, it was averred:-
11. That 1st respondent told me that his brother, the 2nd respondent was coming from Abuja with policemen to arrest me and 1st Applicant should the 1st applicant refused to pay up as demanded. After the encounter with the 1st respondent, the 2nd respondent called me repeatedly on phone that he was coming to Akwa Ibom from Abuja to deal with me and the 1st applicant, should the 1st applicant fail to pay the money as he demanded.
12. That the 1st respondent called me incessantly to know whether the applicant had paid the money as demanded and each time when I said no he reiterated the fact that the 2nd respondent would soon arrive with policemen from Abuja to bundle us to Abuja and that our case shall not be investigated in Akwa Ibom State. Since then I have been living in fear and have not been myself has the calls from the respondent and their threats have destabilized my peace. Then on about Friday, 1st July, 2016 in the morning the 2nd respondent called me and informed me that he was coming that day and demanded to know whether his money was paid by the 1st applicant to me. I said no. Since I did not know about the money.
The appellants on their part averred in paragraphs 47 ? 89 of the Further counter affidavit at pages 67 – 68 of the record of appeal as follows:-
47. That the hiding for fear of arrest and detention and or kidnapping expressed by the 2nd Applicant was only self-induced out of his untruthfulness and cunning character by denying what he had witnessed and participated in his palace that the 1st applicant will pay the said sum of money to the 2nd respondent before the 1st applicant removes his storage tanks from the land.
48. That paragraph 14 of the 2nd Applicant’s Further Affidavit is a blatant falsehood. I state that I had never gone to the 2nd applicant’s house with any document or money to urge him to sign any document and collect the money at all.
49. That the 2nd Applicant never had the cause to shout at me to leave his compound at all and that I neither gave any document to the 2nd applicant nor the 2nd applicant had any cause to refuse to sign any document at all. That I never met the 2nd applicant to plead with him to distance himself from the 1st applicant; that he will not be harmed at all.
In consideration of the above, learned trial judge found at page 88 of the record that:-
I am of the view that incessant phone calls as deposed to by the applicants in their affidavit evidence can weary a person down mentally thereby inflicting upon him mental torture to make him succumb to the desire of the caller.
By virtue of Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Order 2 Rule of the Fundamental Rights (Enforcement procedure) Rules 2009 any person who alleges that any of the fundamental rights provided for in the Constitution of the Federal Republic of Nigeria, 1999 or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or likely to occur, for redress.
It was held in plethora of judicial decisions that once there is a threatened breach of the fundamental right of the citizen, a cause of action arises under the Fundamental Rights Enforcement procedure Rules and the citizen need not tarry or wait until the actual breach before seeking for redress. See JACK V UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR (pt 865) 208, OLUTOLA V UNIVERSITY OF ILORIN (2004) 18 NWLR (pt 905) 416, ZAKARI V IGP (2000) 8 NWLR (pt 670) 666 and MBADIKE & ORS V LAGOS IN?L TRADE FAIR COMPLEX MANAGEMENT BOARD & ORS (2017) LPELR 41968.
However, the onus is on the person alleging a breach of his Fundamental Right to prove same by cogent and credible evidence. See FAJEMIROKUN V COMMERCIAL BANK (CREDIT LYONIYALS ) NIG. LTD & ANOR (2009) 5 NWLR (pt 1135) 558 at 600. Then the question as to whether the respondents were entitled to the declaratory reliefs granted in their favour by the lower Court are dependent on whether they proved same by cogent and credible evidence.
As a general rule, a trial Court before which parties to a dispute have led evidence has the duty to determine which of the versions to accept of the evidence called. It does this based on the advantage which it has of seeing and having the witnesses testify.
In this case, the learned trial judge relied heavily on the averments in paragraphs 14 and 17 of the 1st respondent?s further affidavit and paragraphs 12 and 13 of the 2nd respondent?s further affidavit in arriving at the conclusion that the calls from the appellants herein were incessant enough to weary the respondents down mentally.
The said averments were vehemently denied by the appellants and they specifically averred in paragraph 45 of the Further Counter affidavit as follows:-
45. That whatever fear of threats to destabilise the 2nd appellant?s peace was self-induced and never from the calls of the 2nd respondent at all. That the 2nd Applicant knew about the money very well as the negotiation and the undertaking by the 1st Applicant to pay the said sum of money to the 2nd respondent by the 1st applicant took place in the palace of the 2nd Applicant and the 2nd applicant in attendance. The 2nd applicant is hereby challenged to produce the call log for such calls of threat to his life.
Gleaning from the respondents? claim before the lower Court, same was predicated on the appellants’ incessant and persistent calls. The onus was therefore on them to prove that the said incessant and persistent calls had breached their fundamental right through cogent and credible evidence. And given the fact that the appellants herein have vehemently denied the claim; producing call log is therefore material for the resolution of the vital point in issue.
A Court in evaluation of evidence must take into consideration every little aspect of it and the surrounding factors. It is not for the judge to accept evidence hook line and sinker without weighing its preponderance and probability. See AJAGBE V IDOWU (2011) LPELR 279.
The law is settled that civil suits are determined on preponderance of evidence and balance of probability and therefore Courts should always give consideration to the overall evidence placed before them and the claim as a whole.
In the instant case, the learned trial judge was in error when he arrived at the conclusion that the incessant and persistent calls infringed the respondents? fundamental rights because he did not weigh the evidence adduced by both parties before arriving at his conclusion. In the circumstance, it cannot be said that a miscarriage of justice was not occasioned to the appellants.
It is also a cardinal principle of law that even though an appellate Court will not ordinarily interfere with findings of the trial Court, it behooves an appellate Court to interfere with findings where they are not supported by credible evidence, are perverse and may occasion miscarriage of justice. See AMADI V ORISAKWE (2005) 7 NWLR (pt 924) 385.
On the second issue, the appellants complained that the issue of mental torture was neither raised nor canvassed by the parties and that the trial Court raised it suo motu, without inviting parties to address it.
I have set out the facts of this case and that the grouse of the respondents for which they approached the lower Court for declaratory reliefs was the threats issued by the appellants through several phone calls. I have in the course of this judgment reproduced the pertinent averments of the respective parties but none raises an issue of mental torture. Therefore, the issue of mental torture was raised suo motu.
In deciding a matter, a judge is generally confined to the pleadings and evidence adduced by parties before him, and cannot go outside the ambit of the pleadings and the evidence adduced. But when Courts exercise its power to raise issues suo motu; parties or their counsel must be afforded opportunity of addressing the Court on the issue so raised so as to ensure that the rules of fair hearing are adhered to for the purpose of doing justice. See DALEK (NIG) LTD V OMPADEC (2007) 4 LPELR 916.
In the instant case, the lower Court did not give the parties or their counsel the opportunity to address it on the issue which in my view amount to a serious error.
In F.R.N V DANIEL (2012) 4 NWLR (pt 1289) 40 at 57, this Court has held that a decision reached suo motu by a trial Court cannot be set aside by an appellate Court unless it is evident that the decision has caused a miscarriage of justice.
I have already held the view that the judgment of the lower Court was skewed in favour of the respondents without regards to the evidence presented by the appellants and that failure to invite parties or their counsel was a serious error on its part and thus a miscarriage of justice was occasioned to the appellants. By and large, the judgment of the lower Court was perverse and cannot be justified based on the evidence on the record. I accordingly resolved the two issues in favour of the appellants.
In the end, I find merit in the appeal and it is accordingly allowed. The judgment of the High Court of Akwa Ibom State in suit No. HC/FHR/93/2016 delivered on 16th December, 2016 is hereby set aside with costs assessed at N60,000.00 in favour of the appellants against the respondents.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the concise leading judgment delivered by my learned brother: Muhammed L. Shuaibu, JCA. I am in total agreement with the reasoning and conclusion of the well-articulated judgment. I too allow the appeal. I abide by the consequential orders decreed in the leading judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment of my brother M. L. SHUAIBU JCA, just delivered. I agree entirely with the reasoning and conclusion arrived at in the lead judgment. I will only highlight the point succinctly made in the judgment that a judge must at all times restrict himself to the case before him no matter how strong the temptation to do otherwise. See SPASCO VEHICLE AND PLANT HIRE CO. LTD. VS. ALRAINE (NIG.) LTD (1995) LPELR-3110 which held thus:
“it is an elementary and fundamental principles of the determination of disputes between parties that judgment must be confined to the issues raised by the parties in their pleadings. It is not competent for the trial Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. See COMMISSIONER FOR WORKS, BENUE STATE & ANOR. VS. DEVCOM DEVELOPMENT CONSULTANTS LTD & ANOR (1988) 3 NWLR (PT.83)407,OCHONMA VS. ASHIRIM UNOSI (1965)NMLR AT 321 AT 323; NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD. & ANOR. VS. YAYA MUMUNI (1977)2 S. C. 57; ADENIJI & ORS. VS. ADENIJI & ORS (1972) 1 ALL NLR (PT.1)298;A.C.B. LTD v. ATTORNEY-GENERAL OF THE NORTHERN NIGERIA (1967) NMLR 231 ETC.
The appeal is therefore meritorious and I join my brother to allow it, I also abide by other orders made therein.
Appearances:
U.D. Itat, Esq.For Appellant(s)
K.E. Udofia, Esq. (AB of Godwin Udofia)For Respondent(s)
