ABIOLA & ORS v. KAHAGA & ANOR (2020)

ABIOLA & ORS v. KAHAGA & ANOR

(2020)LCN/14395(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, June 09, 2020

CA/MK/223/2017

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. 2ND LIEUTENANT R.O ABIOLA 2. 2ND LIEUTENANT B. SILAS 3. THE NIGERIAN ARMYAPPELANT(S)

And

1. ANJOV TERFA KAHAGA, PhD 2. AGUGU ATOM MOSESRESPONDENT(S)

RATIO

THE POSITION OF LAW REGARDING CONFLICT OF AFFIDAVIT EVIDENCE

It seems to be common ground between the parties that there was a conflict of affidavit evidence at the lower Court. The position of the law regarding conflict of affidavit evidence has been well settled. It is as follows:
1. Where the conflict is not on material facts but merely flimsy, peripheral or irrelevant, the Court is to ignore such purported conflict and proceed to resolve the matter on the material facts that are not in dispute or that have been admitted or deemed admitted;
2. Where the conflict is material, the Court is to invite the parties to call oral evidence to resolve the conflict;
3. Where there is documentary evidence upon which the conflict can be resolved, the Court need not call for oral evidence. It is to resolve the conflict based on the documentary evidence. See Akinsete V Akindutire (1966) 1 All NLR 149, Falobi V Falobi (1976) 9 and 10 SC 1, 15, Nwosu V Imo State Environmental Sanitation Authority (1990) LPELR – 2129 (SC) or (1990) 2 NWLR (Pt. 135) 688, 7-Up Bottling Co. Plc V LSIRB (2002) 5 NWLR (Pt. 759) 1, 15, Ugbuni V Hussain (2009) 5 NWLR (Pt. 1135) 480, 544, Anzaku V Governor of Nasarawa State (2005) 5 NWLR (Pt. 919) 448, 492 and 502 and Mabamije V Otto (2016) 3 NWLR (Pt. 1529) 171, 192 – 193.
A conflict is said to be material where the facts in contention are important and necessary to be considered for the just determination of the dispute. PER EKANEM, J.C.A.

WHETHER OR NOT A COURT MUST GIVE ITS REASONS FOR COMING TO A CONCLUSION THAT IT BELIEVES THE EVIDENCE OF ONE PARTY AGAINST THE OTHER PARTY

It is just not enough for a Court to state that it believes the evidence of one party as against the other party’s evidence. Such belief or disbelief of evidence must be based on reasons for coming to such a conclusion and such reasons must be given. See Bozin V State (1985) 2 NWLR (Pt. 8) 465, Attorney – General of Lagos State V Sowande (1992) 8 NWLR (Pt. 261) 589, Yardi V Saibu (2001) 3 NWLR (Pt. 699) 16, 29 and Akintan V Adeniyi (2001) 10 NWLR (Pt. 722) 695, 702 and 703. PER EKANEM, J.C.A.

WHETHER OR NOT THE COURT CAN RESOLVE CONFLICTING OR CONTRADICTORY EVIDENCE RELIED ON BY PARTIES BY EVALUATING THE EVIDENCE AND CALLING FOR ORAL EVIDENCE

With all due respect, the trial Court engaged in speculation and fanciful evaluation of the conflicting affidavit evidence.
In Momah V Vab Petroleum Inc (2000) 4 NWLR (Pt. 654) 534, 556 – 557 Achike, JSC, held that:
“..our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied upon by parties on a material issue before the Court, it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve resolution of the conflict.”
See also Akinsete V Akindutire supra., Falobi V Falobi supra., Arjay Limited V Airline Management Support Limited (2003) 108 LRCN 1173, 1199 and Kwashi V Pusmut (2010) 1 NWLR (Pt. 1176) 518, 528. I should mention that it has been held that affidavit evidence, just like any other evidence, is subject to evaluation to resolve conflict. See Ezechukwu V Onwuka (2006) 2 NWLR (Pt. 963) 151, 197 – 198. The dominant position of the law appears to be that conflict in affidavit evidence is not be resolved by analysis of the conflicting affidavits but by calling oral evidence except where there is documentary evidence upon which the conflict can be resolved. PER EKANEM, J.C.A.

WHETHER OR NOT A COURT MUST PRONOUNCE ON ALL THE ISSUES PROPERLY RAISED BEFORE IT

It is no doubt the law that a Court of law especially one which is not the final Court must pronounce on all the issues properly raised before it. However one exception is where there is an order for re-trial in which case there would be no point to decide on all the issues which could arise at the rental. See Edem V. Canon Balls Ltd (2005) 12 NWLR (Pt. 538) 27 and Karaye V. Wike (2019) 17 NWLR (Pt. 1701) 355. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court of Nigeria, Makurdi Judicial Division (the Lower Court) delivered on 17/11/2016 by C.J. Aneke, J., in suit No. FHC/MKD/CS/112/15. In the judgment, the lower Court found in favour of the respondents (as applicants) holding that the appellants (as respondents) had breached respondents’ fundamental right as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. It accordingly directed the appellants to pay the sum of N5m as general damages to each of the respondents.

Aggrieved by the decision, the appellants appealed to this Court by means of a notice of appeal filed on 15/2/2017 which bears seven grounds of appeal.

The facts of the case leading to this appeal may be summarised as follows:
The respondents’ case is that on 11/7/2015, the 1st and 2nd appellants, soldiers in the Nigerian Army, invaded the Benue Links sub-park, Modern Market Road, Makurdi, along with some men of the Nigerian Army.

They assaulted the 2nd respondent in a very degrading and inhuman manner. When the 1st respondent intervened, the officers became hostile to him and were at the point of assaulting him. He therefore drove off to the 72 Battalion Barracks, North Bank, Makurdi to lay a complaint. While the 1st respondent was at the gate of the battalion, the 1st and 2nd appellants arrived in a bus with the 2nd respondent. They assaulted the 1st respondent and treated him in a most degrading, brutal and inhuman manner. The respondents therefore sued the appellants at the Lower Court claiming the following reliefs:
“1. A DECLARATION that the physical assault and battery meted out against the Appellant by the Respondents is a violation of the Appellant’s fundamental right as enshrined in the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act.
2. AN ORDER directing the Respondents jointly and severally to pay the sum of Fifty Million Naira (N50,000,000.00) only as general damages to the Applicant for the dehumanizing and degrading treatment and loss of self

– esteem and dignity, pains and injury suffered by the Applicant as result of the act of the Respondents.
3. AN ORDER directing the Respondents jointly and severally to pay the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira) only being the legal fee for this suit.
4. AN ORDER directing the Respondents to offer a public apology to the Applicants to be published in two National dailies including the Nation Newspapers.
5. AND for such further other orders as this Honourable Court may deem fit to make in the circumstance of this matter.”

The application was supported by a statement of facts, 1st applicant’s affidavits, 2nd applicant’s affidavit, list of documents, exhibits, a written address and a joint further affidavit.

The appellants filed their respective counter – affidavits in which they denied the claim of the respondents. They also filed notices of preliminary objection challenging the jurisdiction of the lower Court.

The lower Court heard the preliminary objection together with the substantive matter. It overruled the preliminary objection and entered judgment in favour of the

respondents as earlier stated.

Pursuant to the rules of this Court, the appellants filed their joint brief of argument on 27/12/2018. The same was settled by Shuaibu Isah, Esq., and was deemed duly filed and served on 5/3/2019.

The respondents filed their brief of argument on 17/3/2019. It was settled by Samuel Irabor, Esq., and deemed duly filed and served on 20/5/2019.

At the hearing of the appeal on 17/3/2020, Isah Shuaibu, Esq., for appellants adopted and relied on appellants’ joint brief of argument in urging the Court to allow the appeal and set aside the judgment of the lower Court.

L.A. Archibong, Esq., for the respondents adopted and relied on respondents’ brief of argument in urging the Court to dismiss the appeal.

In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:
“(i) Whether the trial Court properly considered and determined the preliminary objections of the 1st, 2nd and 3rd Appellants to the Respondents’ suit at trial Court as required by law before assuming jurisdiction to hear and determine the suit. (Grounds 1 and 2).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

(ii) Whether the trial Court was right in not calling oral evidence to resolve material conflicts in the affidavits(sic) evidence of the contending parties before relying on said conflicting affidavits to deliver her judgment in favour of the 1st and 2nd Respondents. (Ground 3).
(iii) Whether the trial Court properly evaluated the evidence placed before it in arriving at its decision. (Grounds 4, 6 and 7).
(iv) Whether the trial Court was right in awarding relief not sought by the Respondents in their application. (Ground 5).”

In the respondents’ brief of argument, the respondents adopt the issues formulated by appellants’ counsel. I shall therefore be guided by those issues in the determination of this appeal.
Issue 1
Whether the trial Court properly considered and determined the preliminary objections of the 1st, 2nd and 3rd Appellants to the Respondents’ suit at trial Court as required by law before assuming jurisdiction to hear and determine the suit.

Appellants’ counsel gave a negative answer to the poser above. He stated that the appellants separately raised preliminary objections to the suit

and by implication the jurisdiction of the trial Court. This, he further stated, was on the ground that the application was not properly commenced as the made of commencement of the originating process was unspecified, unknown and thus improper. He noted that the trial Court substantially agreed with appellants’ contention but held that the non – compliances were a mere irregularity that could not deprive it of jurisdiction. It was his contention that the non-compliances were fundamental as they went to the root of the application. He referred to Order II Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and Chukwuogor V Chukwuogor (2005) LPELR – 12894 (CA).

Counsel went on to state that it is on record that the appellants separately filed notices of preliminary objection to the application and argued the same separately. Nevertheless, he noted, the lower Court, after a detailed consideration of only the arguments of the 3rd appellant, determined only the 3rd appellant’s objection. He submitted that the lower Court dismissed only the objection of the 3rd appellant and made no definite pronouncement on the

objections of the 1st and 2ndappellants before considering and determining the substantive application. Citing the case of First Fuels Ltd V NNPC (2006) LPELR – 5647 (CA), he submitted that the failure was a fundamental breach which rendered any further step taken by the lower Court a nullity.

Respondents’ counsel submitted that the record shows that the lower Court did not abandon the preliminary objections of the 1st and 2nd appellants but rather considered them vis-à-vis the preliminary objection of the 3rd appellant. He stated that the lower Court found the preliminary objections to be similar in terms and substance, and therefore used the objection of the 3rd appellant as his compass in determining the three separate applications. He further submitted that similar issues raised in the objections were exhaustively dealt with by the lower Court.

Resolution
It is the duty of a Court to consider and determine a preliminary objection first before proceeding to hear and determine the case on the merits. Where the preliminary objection and the substantive suit are heard together, the preliminary objection is to be determined

first before the Court considers and determines the merits of the substantive suit. See First Fuels Ltd V NNPC (2006) LPELR – 5647 (CA), Shell Petroleum Development Company V Agbara (2016) 2 NWLR (Pt. 1496) 378 and Allanah V Kpolokwu (2016) 6 NWLR (Pt. 1507) 1, 26.

It was the contention of appellants’ counsel that the lower Court did not consider and determine the preliminary objections of the 1st and 2nd appellants. The appellants separately filed notices of preliminary objection. (See pages 164 – 165, 122 – 123 and 50 – 51, respectively, of the record of appeal). All the notices of the preliminary objection were filed by the same counsel from the same law firm of “Golden Touch Attorneys” Abuja. The three preliminary objections were argued at the hearing of the matter before the lower Court.

In his ruling, His lordship of the lower Court stated at page 222y of the record of appeal, as regards the three notices of preliminary objection and the written addresses supporting them, that:
“Having carefully read through the said processes they are the same in terms of forms and substances and for

purposes of brevity and conciseness, I shall only summarise the arguments of learned counsel for the Respondents in respect of the 3rd Respondent’s processes in determining this application.”

Indeed, a study of the three notices of preliminary objection and the written addresses in support of them shows that the reliefs, the grounds, issues and arguments are the same word for word except in a few negligible or immaterial instances.

The learned Judge of the lower Court, after elaborately considering the submissions of counsel for 3rd appellant and respondents, concluded at page 222 AG of the record as follows:
“I therefore hold that the various non – compliances complained of by the Respondents can not vitiate this matter and thus deprive this Honourable Court of the jurisdiction to entertain the same. The first issue is accordingly resolved in favour of the Applicants and against the Respondents.”

It would be absurd to expect the lower Court, in the circumstance, to consider the preliminary objection of the appellants and rule on them one after the other seeing that they were the same in substance and form. What

applied to one preliminary objection applied to the others. Thus in disposing the first issue in the preliminary objection, the lower Court resolved it;
“… against the Respondents.”

It clearly dealt with and determined all the preliminary objections of the three appellants.
As to the merit of the ruling, the lower Court held at page 222 AD of the record that;
“While it is correct … that the Appellants did not specify the particular originating process adopted by them in initiating the instant application as well as the grounds upon which the reliefs are sought as provided in Order ll Rules 2 and 3 of the Fundamental Right (Enforcement Procedure) Rules, 2009, they nonetheless substantially complied with the procedure set out in Appendix B, Form No 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009. It is therefore my humble view that the complaints of the Respondents are against non–compliances with the Fundamental Rights Procedure Rules bordering on irregularity that cannot deprive this Honourable Court of the jurisdiction to adjudicate on the instant application.”

Order ll Rules 2 and 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, provides as follows:
“2. Any application for the enforcement of the Fundamental Right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rules, lie without leave of Court.
3. An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.”
The rules contemplate that an application for the enforcement of Fundamental Right may be made by any originating process accepted by the Court. The originating process used by the respondents at the lower Court was substantially in compliance with Form No. 1 in the appendix to the Fundamental Rights (Enforcement Procedure) Rules, 2009. The lower Court accepted it as provided for in Order ll Rule 2 of the Rules. That settled the point. The appellants cannot dictate to the lower Court what originating process to accept in this instance especially as Order ll Rule 1 in part

provides that Form No 1 in the Appendix may be used as appropriate.
Rule 3 of Order II provides for the application to be supported by a statement setting out, inter alia, the grounds upon which the reliefs are sought. The respondents did not set out the “grounds upon which the reliefs are sought”, but it filed a process titled “statement of facts”. This, in substance, contained the grounds upon which the reliefs were sought. I agree with the lower Court that that constituted substantial compliance with the requirement.
In any event, Order II Rule 1(1) of the Fundamental Rights (Enforcement Procedure) Rules, 2009, provides:
“1. Where at any stage in the course of or in connection with any proceedings there has, by reasons of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except they relate to:
(i) Mode of commencement of the application;
(ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and People’s Right

(Ratification and Enforcement) Act.”
The foregoing provision is meant to ameliorate the rigidity and hardship that resulted from the near inflexible provisions of the Fundamental Rights (Enforcement Procedure) Rules, 1979, which resulted in matters being struck out with the hammer of technicality. See Enukeme V Mazi (2015) 17 NWLR (Pt. 1488) 411, 434. The result is that failure to comply with certain technical requirements are now treated as an irregularity and may not nullify the proceedings provided the mode of commencement is acceptable to the Court and the subject matter of the suit falls within Chapter IV of the Constitution of Nigeria or the African Charter on Human and Peoples Right (Ratification and Enforcement) Act, as in this instance.
The era of technicality is in the past. We are now in the era of doing substantial justice. The ghost of technical justice should have no place in today’s Court room. The case of Chukwuogor V Chukwuogor supra which appellants’ counsel cited and relied on in urging the Court to hold that the non-compliance was fatal was decided under the rigid rules of 1979 which have been abrogated by

Order XV Rule 1 of the 2009 rules.

I therefore enter an affirmative answer to issue 1 and resolve it in favour of the respondents.

Issue 2
Whether the trial Court was right in not calling oral evidence to resolve material conflicts in the affidavit evidence of the contending parties before relying on the said conflicting affidavits to deliver his judgment in favour of the 1st and 2nd Respondents.

Appellant’s counsel posited that the affidavits and counter-affidavits of the contending parties were materially in conflict in respect of fundamental issues in contention. It was further posited that the lower Court was wrong in relying on the conflicting affidavits to arrive at its judgment without calling oral evidence to resolve the conflict. He stated that the appellants not only particularly denied and controverted the depositions that the respondents were wrongfully arrested, assaulted, tortured and detained by the 1st and 2nd appellants but they went on to give their facts of the matter. Counsel submitted that it is trite law that where there is a material conflict in affidavit evidence called by both sides, it is necessary to call oral

evidence to resolve the conflict. He cited and relied on Nwosu V ISESA (1990) LPELR – 2129 (SC) and Adewale V Governor, Ekiti State (2007) 2 NWLR (Pt. 1019) 643.

He noted that though the lower Court acknowledged the conflict in the affidavit evidence, it went on to believe the version of the respondents without stating any legal basis for such a belief. Counsel stressed that there was no documentary evidence before the lower Court upon which it could resolve the conflict. It was his contention that the decision of the lower Court occasioned a miscarriage of justice.

Respondent’s counsel stated that there are two documents upon which the conflict of affidavit evidence could be resolved, to wit; the photograph of the brutalized 1st respondent and the medical report from the Federal Medical Centre at pages 22 and 23, respectively, of the record. He contended that the lower Court captured the potent paragraphs of the conflicting affidavits to show that he was fully seized of the facts including the pictures. He referred to paragraphs 19 and 24 of 1st respondent’s affidavit which he said introduced the documents. Thus, he submitted,

there was no need to call oral evidence by the lower Court.

Counsel argued that the documentary evidence does not accord with the narrative of the appellants that the Commanding Officer of 71 SF Battalion, Makurdi, ordered that the matter be settled for the sake of “cordial military-civil relationship”. He added that the brute and blunt force used on the 1st respondent could only have accorded with the “averment” of the appellants that the 1st respondent was a “security threat” to their command and was so treated.

conflict;
3. Where there is documentary evidence upon which the conflict can be resolved, the Court need not call for oral evidence. It is to resolve the conflict based on the documentary evidence. See Akinsete V Akindutire (1966) 1 All NLR 149, Falobi V Falobi (1976) 9 and 10 SC 1, 15, Nwosu V Imo State Environmental Sanitation Authority (1990) LPELR – 2129 (SC) or (1990) 2 NWLR (Pt. 135) 688, 7-Up Bottling Co. Plc V LSIRB (2002) 5 NWLR (Pt. 759) 1, 15, Ugbuni V Hussain (2009) 5 NWLR (Pt. 1135) 480, 544, Anzaku V Governor of Nasarawa State (2005) 5 NWLR (Pt. 919) 448, 492 and 502 and Mabamije V Otto (2016) 3 NWLR (Pt. 1529) 171, 192 – 193.
A conflict is said to be material where the facts in contention are important and necessary to be considered for the just determination of the dispute.

It is necessary to bear in mind that the case of the respondents before the lower Court as ventilated in their statements, affidavit and reliefs was that the appellants violated their right to dignity of the human person contrary to Section 34(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and

Articles 6 and 7(sic;5) of the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act. This, according to the respondents, was as a result of the alleged brutal assault on them by the 1st and 2nd appellants. The appellants denied the allegation. I should perhaps set out the pertinent depositions of the contending parties. I do so hereunder:
Paragraphs 3 – 21 of the 1st respondent’s affidavit are as follows:
“3. That on the 11th day of July, 2015, while I was driving to my house from Modern Market, Makurdi, I noticed an unusual crowd at the Benue Links sub park at Modern Market Road, Makurdi. On a closer observation, I saw some officers and men of the Nigerian Army in Army uniforms with an Army truck parked by the side physically assaulting the 2nd Applicants (a civilian) with horse whips while he knelt down carrying a 9 inch cement block on his raised hands.
4. That I parked my car, alighted and approached the two officers who were supervising the assault, who by their uniform, badges and name tags I identified them as 2nd Lieutenant R.O. Abiola and 2nd Lieutenant B. Silas.
5. That I introduced myself to them

and enquired from them why the 2nd Respondent was been physically assaulted by their men. Their response was that “the man bought market and they have come to give him the market.” Whatever that means I do not know.
6. That I pleaded with the 1st and 2nd Respondents that they should stop beating the 2nd Applicant and instead either hand him over to the police for whatever offence he has committed for investigation and prosecution other than publicly assaulting him.
7. That at this point, the 1st and 2nd Respondents became hostile to me and started threatening to assault me too.
8. That I quickly left the scene and drove straight to 72, Special Forces Battalion Barracks with the intention to lay a complaint before the Intelligent Officer (I.O) so that he can call his men to order.
9. That while I was at the 72 Battalion Barracks’ gate enquiring from the guards on duty how I can locate the Intelligence Officer, the soldiers who were on rampage in town arrived at the gate with a Benue Links bus seized from the 2nd Respondent and a soldier was behind the wheel while the 2nd Respondent who they have thoroughly beaten was

sitting beside with blood dripping from all over his body.
10. That on sighting me at the gate, 1st Respondent ordered me to come over and I obeyed. On reaching to where he was, he descended several slaps on my face and kicked me with his Army booths. The soldiers that were with him also joined in beating and kicking me until I collapsed on the ground. I was forcefully jacked up by 1st Respondent and pushed into the Benue Links bus they had seized in town and was driven inside the barracks.
11. That I felt excruciating pains on my left leg and waist.
12. That the bus drove straight to quarter guard. There at the quarter guard, 1st respondent prevented me from calling my wife and my lawyer and collected all my phones. He ordered me to lie face up and look straight into the sun which I obeyed.
13. That I lied down side by side with the 2nd Applicant.
14. That the 1st Respondent told me that the Intelligent Officer I was looking for is in the sun I should open my eyes and look very well.
15. That while I was lying face up, 1st Respondent started beating me with horse whips and other soldiers joined. One of the soldiers asked me to

close my legs, I did and he flogged me ten times on my feet.
16. That I was kicked with booths on the head and was beaten with sticks on the head.
17. That I was beaten in the full glare of men and women who came to the Quarter Guard to see what was happening by the 1st and 2nd Respondents and soldiers at the instruction of 1st and 2nd Respondents.
18. That after I had lied faced up for more than 30 minutes, 1st Respondents asked me to turn and lie face down and pull my shirt, I obeyed and he flogged me 12 strokes of the horse whip on my back. At the count of 12, he paused and asked me what tribe I am and I told him that I am Tiv, he said because I am Tiv he will give me additional six strokes of the horse whip because Tiv people are proud, arrogant and stubborn and he did.
19. That whenever 1st Respondent beating me the soldiers with him will join. The photograph of my brutalized body is hereby attached as Exhibit A.
20. That 2nd Respondent taunted me that by the time they are through with me, I will not only be a Doctor but a Professor of Non – Governmental Organization (NGO).
21. That when 1st and 2nd Respondents were

done with the assault, they ordered Lance Corporal Bala to lock me up in the Guardroom. I was locked up in the Guardroom at 10.34.00 am and was released by 3.17pm on the directives of the Adjutant as I was latter informed by a soldier named Danlami immediately after I came out of the cell.”

Paragraphs 9 – 33 of the counter – affidavit of the 2nd appellant are as follows:
“9. That save as otherwise expressly admitted in this counter affidavit. I generally deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 (A) to (E) and 29 of the 1st applicant’s affidavit and paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (A) to (E) and 17 of the 2nd applicant’s affidavit.
10.That paragraphs 1 and 2 of both the 1st and 2nd applicants’ affidavits are strictly within the knowledge of the applicants.
11. That paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 25, 26 and 27 of the 1st Applicant’s affidavit are FALSE, misleading and a figment of the 1st applicant’s imagination.

That paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the 2nd applicant’s affidavit are entirely FALSE.
13. That I deny paragraph 3 of the 1st applicant’s affidavit and ever that no officer and men of the 3rd respondent physically or otherwise assaulted the 2nd applicant or any other person with horse whip while he knelt down carrying a 9 inch cement block as alleged by the first applicant or in any other way or manner at all on 11th day July, 2015 or any other date or time.
14. That I admit paragraph 4 of the 1st Applicant affidavit only to the extent that 1st and 2nd respondents names and ranks are 2nd Lieutenant R.O Abiola and 2nd Lieutenant B. Silas respectively but deny every other allegation of fact contained therein and I specifically deny and aver that no officer or soldier of the 3rd respondent was ever involved in assaulting any or either of the applicants or any other person and neither I nor the 1st respondent ever supervised the assaults of any or either of the Applicants or any other person.
15. That I deny paragraph 5 of the 1st applicant’s affidavit in its entirety and aver that the 1st Applicant

never inquire from 1st respondent and I “why the 2nd Respondent was been physically assaulted by their men” as men of the 3rd respondent never physically assaulted the “2nd Respondent” as alleged in the paragraph or any other person at all. Neither did I or and the 1st respondent tell or have any cause to tell the 1st applicant or any other person that “the man bought market and they have come to give him the market” (whatever the 1st applicant means by that) as alleged by the 1st applicant or any other such incomprehensible word or language.
16. That I deny paragraph 6 of the 1st applicant’s affidavit and aver that the 1st applicant never pleaded with the 1st respondent and I or any other officer or men of the 3rd respondent to stop beating the 2nd applicant and hand him over to the police as neither the 1st respondent and I or any other officer or men of the 3rd respondent was ever involved in beating or publicly or otherwise assaulting the 2nd applicant or any other person at all.
17. That I deny paragraph 7 of the 1st applicant’s affidavit and avers that the 1st Respondent and I or any other officer

and men of the 3rd respondent had no business whatsoever with the 1st applicant and were never hostile and had no course to be hostile to the 1st applicant or any other person at all as the 1st respondent as commissioned officers and gentlemen of the 3rd respondent are specially trained and imbued to apply decorum and professionalism in the discharge of our duties, especially when dealing with civilians, even in the face of provocation.
18. That I admit paragraph 8 of the 1st applicant’s affidavit only to the extent that the 1st applicant came to the security check point at the entrance of 72 SF Battalion barracks (Joe Akahan Barracks) but deny that the 1st applicant came with the intention to complain to the Intelligent Officer or any other officer to call his men to order as there was no disorderly conduct to report and the 1st applicant’s conduct at the security post showed otherwise.
19. That in further response to paragraph 8 of the 1st applicant’s affidavit, I aver that the 1st applicant came to the security check point at the gate (a Restricted Area) uninvited and against all protocol and security procedure, attempted to

breach the security of the military barracks by forcing his way into the barracks without proper check and identification or stating his mission. Attempts to check the 1st applicant proved abortive as he unreasonably threatened and poured unprintable invectives on the men on security duty thereby constituting himself into a nuisance and security threat to the men on duty and the military barracks.
20. That I deny paragraph 9 of the 1st applicant’s affidavit and aver that neither the 1st respondent and I nor any officer or soldier of the 3rd Respondent ever went on rampage or “cease any bus from the 2nd Respondent” or beat “the 2nd Respondent” as alleged or any other person at all with blood dripping from all over his body as alleged or at all. I further aver that the 1st applicant was still at the entrance of the barracks issuing his threats and insults and constituting himself into a security threat when the 1st respondent and I (as duty officer and standby officer of the day respectively) came to the security check point.
21. That I deny paragraph 10 of the 1st applicant’s affidavit and aver that neither the 1st

respondent or I nor any other officer or men of the 3rd respondent slapped the 1st applicant on the face or kicked or beat the 1st applicant with army boots as alleged or at all or kicked the 1st applicant until he collapsed on the ground or at all or forcefully or otherwise picked up the 1st applicant and pushed him into the Benue Links bus or any other vehicle as alleged.
22. That in further response to paragraph 10 of the 1st applicant’s affidavit I aver that the 1st Respondent (as Duty Officer and by implication Security Officer of the day) only ordered for the arrest of the 1st applicant when he threatened the security of the officers and men and the entire military barracks as the officers and men of the 3rd respondent became reasonably suspicious that the 1st applicant had criminal or sinister motives and they needed to apprehend him and confirm his motives and identity and hand him over to the civil police if necessary.
23. That I deny paragraph 11 of the 1st applicants’ affidavit and aver that if the 1st applicant felt any excruciating pains on his foot and waist as alleged in paragraph 11, which is not conceded, it was not due

to any act or commission or omission of the 1st respondent or I or any of the 3rd respondent’s officers or men as no officer or men of the 3rd respondent assaulted the 1st applicant in any way whatsoever and at any time ever.
24. That I deny paragraph 12 of the 1st applicant’s affidavit and aver that neither the 1st respondent, as alleged, nor any officers or men of the 3rd respondent ever prevented the 1st applicant or any other person from calling his wife or lawyer or collected the 1st applicant phones as alleged, neither did 1st respondent, as alleged, nor any officer or men of the 3rd respondent order the 1st applicant to lie face up and look straight into the sun as alleged or at all.
25. That I deny paragraph 13 of the 1st applicant’s affidavit and aver that the 1st applicant did not lie down side by side the 2nd applicant, as alleged, and no officer or men of the 3rd respondent ordered the 1st applicant, 2nd applicant or any other person to lie down side by side one another or at all.
26. That I deny paragraph 14 of the 1st applicant’s affidavit and aver that neither the 1st respondent, as alleged, nor any officer

or men of the 3rd Respondent ever tell the 1st applicant or any other person that the Intelligent Officer the 1st applicant was looking was in the sun and the 1st applicant opens his eyes and look into the sun as alleged.
27. That I deny paragraph 15 of the 1st applicant’s affidavit and aver that the 1st applicant did not lie facing up and neither the 1st respondent nor I or any officer or men of the 3rd Respondent ever tell the 1st applicant to lie facing up neither did the 1st respondent nor any officer or soldier (men) of the 3rd respondent beat the 1st applicant or any other person with horse whips or any other object on the feet or any other part of the body or at all.
28. That I deny paragraph 16 of the 1st Applicant’s affidavit and aver that no officer or men of the 3rd respondent kicked the 1st applicant or any person on the head nor beat the 1st applicant or any person with stick on the head as alleged.
29. That I deny paragraph 17 of the 1st applicant’s affidavit and aver that the neither the 1st respondent nor I or any officer or men of the 3rd respondent beat the 1st applicant or any other person in the full glare

of men and women or otherwise at the quarter guard or any other place and I further aver that the military quarter guard is not a public place but a restricted security area that is not open to the public.
30. That I deny paragraph 18 of the 1st applicant’s affidavit and aver that the 1st respondent did not at any time order the 1st applicant or any other person to lie facing up for more than 30 minutes or at all or ever asked the 1st applicant or any other person to turn and face down and pull his shirt or flog the 1st applicant 12 strokes of a horse whip on his back or at all; neither did 1st respondent, as alleged, or any other officer or men of the 3rd Respondent ever ask the 1st applicant or any other person his tribe or order that the 1st applicant or any other person be given any strokes or six extra strokes or at all “because Tiv people are proud, arrogant and stubborn” as alleged or on any other ground whatsoever.
31. That I deny paragraph 19 of the 1st Applicant’s affidavit and aver that neither the 1st respondent nor any other officer or men of the 3rd respondent at any time, individually, jointly or at all beat the

1st Applicant or any other person. I dispute the photograph (Exhibit A) and aver that assuming but not conceding that the photograph shows the “brutalized body” of the 1st applicant or any other person, such injury was not caused by I or any of the 3rd respondent’s officers or men during the encounter in issue or at all.
32. That I deny paragraph 20 of the 1st Applicant’s affidavit and aver that I never taunted the 1st applicant as alleged and neither did any other officer or men of the 3rd respondent taunt the 1st Applicant or any other person by making a statement “that by the time they were through with me, I will not only be a doctor but a professor of non-governmental organization (NGO)” as alleged or at all.
33. That I admit paragraph 21 of the 1st applicant’s affidavit only to the extent that the 1st applicant was arrested at the security check point of the barrack’s entrance upon reasonable suspicion of security threat and crime and only restrained for less than an hour (from around 10.00 am to around 10.50 am) in order to determine his identity, motive and mission at the restricted military

zone and was shortly released by the 3rd respondent after establishing his person and identity; I however deny that the 1st respondent and I assaulted the 1st applicant and after we were done with the assault we ordered that the 1st applicant be locked up and 1st applicant was consequently locked up in the guardroom form 10.34 a.m. to 3.17 p.m. Neither the 1st applicant nor any other person was locked up in the guardroom or any other place from 10.34 a.m. to 3.17 p.m. as alleged by the 1st Applicant on the orders of the 1st respondent and I.”

The counter – affidavits of the 1st and 3rd appellants are in the same vein.

It is clear therefore that there was a conflict of affidavit evidence on the material facts of the case especially as to the arrest and brutalization of the respondents. Indeed, the Lower Court acknowledged the conflict when it stated at page 222 AL of the record of appeal as follows:
“In paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 12, 14, 15, 18, 19, 21, 24, 25 and 26 of the 1st Applicant’s Affidavit in support and in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 13, 14 and 15 of the 2nd Applicant’s affidavit in support

of the fundamental rights application already set out above in this judgment the Applicants chronicled their ordeal in the hands of the Respondents.
The 1st and 2nd Respondents in paragraphs 9, 14, 18, 19, 22, 27, 33, 37, 38, 39 and 56 (a)(b)(c)(e)(f)(g)(h)(m)(q) and (r) of their separate counter – affidavits also denied the Applicants account of what transpired between the parties. The 3rd respondent also in paragraphs 14, 15, 16, 17, 18, 19 and 53 (a)(b) and (r) amongst other paragraphs of its Counter – Affidavit stated its version of what happened.”

How did the lower Court resolve the conflict? The first point is that it did not invite the parties to call oral evidence to resolve the material conflict. Rather at pages 222 AL – 222 M the lower Court reasoned as thus:
“The Court has read the vivid descriptions of the arrests, beatings and brutalization, dehumanization and detentions of the Applicants particularly as reproduced above which gave a detailed account of their arrest and torture as against paragraphs of the 1st, 2nd and 3rd Respondents Counter – Affidavit and this Court believes the Applicants that

they were arrested, beaten and brutalized, dehumanized and detained as averred in the Applicants’ Affidavit in support of the instant application.”
It is just not enough for a Court to state that it believes the evidence of one party as against the other party’s evidence. Such belief or disbelief of evidence must be based on reasons for coming to such a conclusion and such reasons must be given. See Bozin V State (1985) 2 NWLR (Pt. 8) 465, Attorney – General of Lagos State V Sowande (1992) 8 NWLR (Pt. 261) 589, Yardi V Saibu (2001) 3 NWLR (Pt. 699) 16, 29 and Akintan V Adeniyi (2001) 10 NWLR (Pt. 722) 695, 702 and 703.
The lower Court arrived at its preference for the respondents’ version of the events without giving any reason for doing so and without referring to any document that it could use to resolve the conflict. In Atanda V Akunyun (1988) 10 – 11 SCNJ 11, 22 the Supreme Court held that where there is a conflict of affidavit evidence, a Court is not allowed to prefer one deposition to the other as the lower Court did in this instance.
The lower Court went further to clear any doubt in its mind by

referring to the directive of the Commanding Officer, 72 SF Battalion Makurdi, that the 1st and 2nd respondents should settle the matter with the respondents. It reasoned as follows:
“The pertinent question to ask is why would the Commanding Officer … direct the 1st and 2nd Respondents in the company of the Battalion Adjutant to go to the 1st Applicant’s office and amicably resolve the dispute all in the name of the so called “cordial military – civil relationship” if the 1st Applicant was indeed a security threat to his command … The simple answer is because he was greatly appalled by the unlawful and unjustified infractions of the Applicants by the 1st and 2nd officers and men of the 3rd Respondent. I find the tale told by the Respondents most incredulous to swallow.” See pages 222 AL – M of the record of appeal.

It was submitted by respondents’ counsel that there was documentary evidence upon which the lower Court could resolve the

conflict, viz; the photograph of the brutalized 1st respondent and the medical report from the Federal Medical Centre, Makurdi. The documents are referred to in paragraphs 19 and 24, respectively, of the 1st respondent’s supporting affidavit. It must be noted that in paragraph 36 of the 2nd respondent’s counter – affidavit, the 2nd appellant denied the said paragraph 24 of the 1st respondent’s affidavit and added that assuming, without conceding, that the 1st respondent suffered any severe pains and went to the hospital for treatment, neither him or any other officer or men of the 3rd appellant is responsible for the same as the condition was not caused by them. The picture and the medical report therefore could not safely be used to resolve the conflict in the affidavit evidence.
It is therefore my view that the lower Court ought to have invited the parties to call oral evidence to resolve the conflict of affidavit evidence before proceeding to determine the matter.

I therefore enter a negative answer to issue 2 and resolve it in favour of the appellants.

Issues 3 and 4 seek to draw the Court into a determination of the

merit of the matter. It seems to me that in view of my answer to issue 2, it will not be expedient to look into and determine the merits of the fundamental right matter. This is because the failure of the lower Court to invite parties to lead oral evidence before deciding the matter led to a miscarriage of justice. Its judgment must therefore be set aside and a re – trial be ordered. It is no doubt the law that a Court of law especially one which is not the final Court must pronounce on all the issues properly raised before it. However one exception is where there is an order for re-trial in which case there would be no point to decide on all the issues which could arise at the rental. See Edem V. Canon Balls Ltd (2005) 12 NWLR (Pt. 538) 27 and Karaye V. Wike (2019) 17 NWLR (Pt. 1701) 355.

On the whole and in the light of my resolution of issue 2, I come to the conclusion that the appeal has merit. It is allowed. The decision of the lower Court is hereby set aside. In its place, I direct that the case be remitted to the lower Court for hearing of oral evidence and determination by the lower Court before a Judge of the Court other than the learned trial

Judge (Aneke, J). It is further directed that the case be heard expeditiously.
The parties shall bear their costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in advance the lead judgment of my learned brother, HON. JUSTICE J.E. EKANEM, JCA; and I am in complete agreement with his reasoning and conclusion that where as in this case the affidavits and counter-affidavits of the parties were conflicting on material issues, the learned trial Judge ought to have invited them to call oral evidence to resolve such conflicts. The authorities of Momah vs. VAB Petroleum INC (2000) 4 NWLR (Pt.654) 556-557; per Achike, JSC; Falobi vs. Falobi (supra); Kwashi vs. Pusmut (2010) 1 NWLR (Pt.1176) 518 at 528. etc ably cited and relied upon by my Lord are all on point. Having failed so to do, the learned trial Judge erred in relying on the affidavit of the Respondents to enter judgment in their favour. Accordingly, I shall also allow the Appeal and order that the case be remitted to the Court below for retrial before another Judge.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me in advance, a draft copy of the

Judgment just delivered in which this appeal as allowed. The issues arising for determination have been fully considered and resolved. I agree with the predictable conclusion that this appeal has merit, in the circumstances.

The settled principle of law is that where depositions in the affidavit evidence of the parties are in conflict, the Court seised of the matter must resolve the conflict by calling oral evidence; Daniel & Anor v. Ayala & Anor (2019) LPELR-493441(SC): Eimskip Ltd v. Exquisite Industries (Nig) Ltd (2003) LPELR- 1058(SC); Mabamije v. Otto (2016) LPELR-26058(SC); Ugwu & Ors v. PDP & Ors (2015) LPELR-24352(SC); Falobi v. Falobi (1976) LPEL R- 1236(SC).
There may be no requirement to call for oral evidence where there is documentary evidence from which the Court can settle conflicts in affidavits: Ezechukwu & Anor v. Onwuka (2016) LPELR-26055(SC). In the instant appeal, the Respondents had exhibited a medical report and a photograph. However, the outright denials by the Appellants that the injuries sustained by the 1st Respondent, as revealed in the documentary evidence, were traceable to them, made the documentary

evidence unhelpful. In view of the disputations, the learned trial Judge ought to have called for oral evidence, as has now been ordered by this Court.

For these reasons, and the more comprehensive resolutions set out in the lead judgment. I also allow this appeal and abide by the order that the matter be remitted to the lower Court for hearing of oral evidence and determination before another Judge of the Court.

Appearances:

Isah Shuaibu, Esq., with him, Samuel Obot Esq. For Appellant(s)

L.A. Archibong, Esq. For Respondent(s)

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