ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS v. AKALIRO & ORS (2021)

ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC & ORS v. AKALIRO & ORS

(2021)LCN/15177(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 31, 2021

CA/MK/59/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC 2. ABEL IDI YARIGO 3. PUTKART MARKUS 4. IBRAHIM BULALA 5. TOLANI ADEBOLA SUNDAY 6. ALADI AMANOBO 7. IFEOMA MARY NEMINE 8. NGOZI REBECCA AMADI 9. NGOZI FAVOUR ANEKE 10. GLORIA MFEM NTOL 11. ANN FAVOUR UDO 12. AMINA SANI DANLITI APPELANT(S)

And

1. LT. COL. C. AKALIRO 2. CHIEF OF ARMY STAFF 3. COMMANDER, BRIGADE OF GUARDS 4. ATTORNEY GENERAL OF THE FEDERATION 5. NIGERIAN ARMY COUNCIL RESPONDENT(S)

RATIO

WHETHER OR NOT ISSUES ARE FORMULATED FROM THE GROUNDS OF APPEAL

However, it is worthy to state that the question of issues for determination and their relationship with the Grounds of Appeal are matters of practice and procedure which go only to regularity and are no grounds for nullity. In considering whether issues for determination must be formulated from Grounds of Appeal, this Court in ANODE v. MMEKA (2007) LPELR-5141(CA) (Pp. 11-12 paras. D-E) held Per SAULAWA J.C.A. (as he then was) thus:
“It is trite that issues are formulated from grounds of appeal which are normally predicated on the ratio decidendi of the judgment appealed against. Thus, any issue not formulated from any ground of appeal is incompetent. See Dada V Dosunmu (2006) 18 NWLR (Pt. 1010) 134…. However, even though it is necessary and desirable for an appellant to relate the issues formulated for determination in the brief to relevant grounds of appeal, failure to comply with that requirement of principle may not always result in such issues being struck out for incompetence. An exception to the general rule is where in the opinion of the Court, such issues can validly and conveniently be distilled from the ground of appeal. This is with the view to doing substantial justice to both parties, which is the preoccupation of the Court. See Dada V. Dosunmu (supra) at 156 paragraphs E-G. The Supreme Court has admonished Courts on doing substantial justice thus: In such a situation the Court can on its own take a close look at the grounds of appeal and issues as formulated and in order to do substantial justice between the parties which is the preoccupation of the Court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution.” In certain appropriate cases, the Courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by the learned counsel to the appellant are found to be either inadequate or grossly or fundamentally defective.” PER AGUBE, J.C.A.

WHETHER OR NOT ONCE A COURT RAISES AN ISSUE SUO MOTU, IT IS DUTY BOUND TO CALL PARTIES TO ADDRESS THE ISSUE SO RAISED

Although, it is the general and established position of the law that once a Court raises an issue suo motu, it is duty bound to call the parties to address it on the issue so raised, however, an exception to the general rule does exists and it is where the issue raised by the Court suo motu is an issue of law or touches on the jurisdiction of the Court. See EFFIOM & ORS vs. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) LPELR- -1027 (SC); MALLAM UMARU KWAGE & ORS v. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR – 42508 (CA). PER AGUBE, J.C.A.

THE DUTY ON A PARTY ALLEGING BREACH OF FUNDAMENTAL RIGHTS

In determining the duty on a party alleging breach of fundamental rights, this Court in OANDO PLC V. FARMATIC BIOGAS WEST AFRICA LIMITED & ANOR (2018) LPELR – 45564 (CA); held per Abubakar, J.C.A. thus:
“The settled position of the law in cases of allegation of violation of fundamental rights is that a mere allegation or deposition in an affidavit stating that an Applicant was arrested is not sufficient to constitute proof of infringement or infraction on the rights of an applicant, the specific facts of the alleged detention and the duration must be proved in substantial details….In an application for the enforcement of Fundamental Human Rights, particularly where arrest is alleged, the Applicant must prove specific detention and duration. It is not a matter of speculation…..”Indeed, the Applicant has the burden to prove by cogent convincing and credible evidence, the facts as alleged by him, as construing the breach or infringement of the Fundamental right to freedom from inhuman and degrading treatment or torture as guaranteed him by Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria. General and wide allegations of such breach and infringement will not suffice….” It must be clearly stated that a bare and generalized allegation of arrest and detention cannot serve as sufficient proof of infraction on the rights of an Applicant, he must go further to advance concrete, cogent and convincing reasons for the Court to find in his favour. The Court must not give to speculation, conjecture or logical deduction, applicant has a duty to furnish in substantial details the fact of his arrest and detention, he must in other words particularize the particulars of his arrest and detention. A Court of law must not render its self-gullible or vulnerable to guess-work….”PER AGUBE, J.C.A.

THE BURDEN OF PROOF WHERE A PARTY MAKES AN APPLICATION FOR REDRESS OF A BREACH OR CONTRAVENTION OF HIS CONSTITUTIONAL RIGHTS

The law is settled that where a person approaches a Court of law by way of an Application for redress of a breach or contravention of any of his guaranteed rights under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively. It is not enough for a party or person to approach a Court of law with an application calling or praying for protection of his fundamental rights by way of declarations, injunction and/or other forms of reliefs on the basis of alleged threat or breach or contravention of such right. For him to be entitled to such redress or reliefs of protection, he must first produce reasonably sufficient and credible evidence before the Court to show and satisfactorily establish a real and factual breach or contravention of the right alleged. Until a person produces evidence which prima facie shows or established a factual breach or contravention of this fundamental rights guaranteed under Chapter IV of the Constitution, his application before a Court for the enforcement of such right will fail and be dismissed out-rightly. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal emanates from the Ruling of the High Court of Nasarawa State sitting at Mararaba Gurku and delivered by Hon. Justice Haruna A. Offo on the 17th of November, 2015 wherein the learned trial Judge dismissed the Appellants’ application for enforcement of their fundamental rights. Dissatisfied with the decision of the lower Court, the Appellants invoked the jurisdiction of the Court by filing a Notice of Appeal on the 28th of January, 2016 containing eight (8) grounds which I reproduce without their particulars below, to wit:
“GROUND 1:
The learned trial Judge erred in law when he held that “the applicants have not provided any evidence to show that their rights were infringed by the Respondents which denial was substantial by the Respondents in their first issue raised for determination” when there were three supporting affidavits which he ignored thereby occasioning a miscarriage of justice.
GROUND 2:
The learned trial Judge erred in law when he failed to consider and evaluate the affidavit evidence before him, before arriving at the conclusion

that applicants’ failed to prove their case thereby occasioning a miscarriage of justice.
GROUND 3:
The learned trial Judge erred in law having wrongly misconceived and misinterpreted the case of the applicants and the nature of evidence required to discharge the evidential burden of proof when he held that “the applicants have failed to place before this Court credible evidence to prove the allegations made against the Respondents’ thereby occasioning a miscarriage of justice.
GROUND 4:
The learned trial Judge erred in law when he dismissed the Appellants’ case on the basis of the affidavit evidence without taking oral evidence when there were conflicting averments between the supporting affidavits and the counter affidavits thus, occasioning a miscarriage of justice.
GROUND 5:
The learned trial Judge misdirected himself in law when he concluded and held that “…the application was hasty in nature. No purported principal party is before me. The soldier boys…” when the 1st Respondent who was alleged to have led the military raid on 1st Applicant’s premises was a party to the

proceedings thereby occasioning a miscarriage of justice.
GROUND 6:
The learned trial Judge misdirected himself in law when he failed to rely on the affidavit of 2nd Applicant to grant the reliefs sought as a result of the wrong assumption that 2nd applicant’s supporting affidavit was denied by all the Respondents when on the records, the affidavit was not challenged or denied by the 1st Respondent thereby occasioning a miscarriage of justice.
GROUND 7:
The learned trial Judge erred in law to have introduced facts not contained in the affidavit evidence and relied on same in dismissing the Appellant’s case thereby occasioning a miscarriage of justice.
GROUND 8:
The Ruling is against the overwhelming weight of evidence before the Court.”

STATEMENT OF FACTS:
The Appellants as Applicants by way of Originating Motion on Notice and Affidavit of Utmost Urgency, instituted the action now on Appeal, against the Respondents on the 25th of May, 2015, for the enforcement of their fundamental rights wherein they prayed the trial Court for the following reliefs:
“1. A Declaration that the raiding,

military invasion and forceful entry into the 1st applicant’s business premises at Keffi service centre, by the Respondents through Army personnel from 177 Guards Brigade Battalion Army Barracks near Keffi is illegal, unlawful, gross abuse of power and a violation of the Applicants’ fundamental human rights as enshrined in the Constitution of Nigeria.
2. A declaration that the raiding, military invasion and forceful entry into the Applicants’ work place, beating up, torture, effecting inhuman and degrading treatment, and arbitrary detention of the 2nd – 12th Applicants by the Respondents through Nigeria Army personnel from 177 Guards Brigade battalion Army Barracks near Keffi is illegal, unlawful, gross abuse of power and a violation of the Applicants’ fundamental human rights to personal liberty, privacy and personal dignity as enshrined in the Constitution of Federal Republic of Nigeria.
3. A perpetual order of injunction restraining the Respondents either by themselves, their agents, privies, servants, officers or howsoever called from further arresting, detaining or infringing on the Applicants’ right to

liberty and dignity as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. A perpetual order of injunction restraining the Respondents either by themselves, their agents, privies, servants, officers or howsoever called from further harassing the Applicants especially the 1st Applicant and interfering with the electricity distribution schedules of the 1st Applicant.
5. A Declaration that the subjection of 5th Applicant to remove her breast in public at gun point by the officers under the command and instruction of the Respondents is a gross infraction and violation of 5th Applicant’s right to privacy and dignity of her person as a citizen of Nigeria, a female and a nursing mother.
6. An Order directing the Respondents to compensate the Applicants with the sum of N500,000,000 (Five hundred million naira) for breach and violation of Applicants right to liberty, dignity and loss of business time.
7. An Order directing the Respondents to publish an apology in two Nigerian National Newspapers one of which must be THIS DAY NEWSPAPER for unlawful arrest and detention and a violation of Applicants’

fundamental human rights.”

The Applicants supported their Originating Motion with two affidavits. The first one is an Affidavit of 34 paragraphs deposed to by the 6th Appellant (pages 11-14 of the Record of Appeal) and the second affidavit is deposed to by the 3rd Appellant (pages 16-19 of the record). There is also an affidavit of urgency of 37 paragraphs deposed to by the 2nd Appellant (pages 34-38 of the record) which is annexed to an Ex-parte Application filed by the Applicants.

The summary of the Appellants’ case at the trial Court is that the Nigerian Army formation at 177 Guards Battalion incurred outstanding electricity bills to the sum of N604,701,853.60 (Six hundred and four million, seven hundred and one thousand, eight hundred and fifty-three naira, sixty kobo) as at 30th April, 2015. The Appellants contend that despite several demand letters, they finally issued a disconnection notice and on the 19th of May, 2015, they actually disconnected the Nigerian Army formation at 177 Guards battalion from electricity supply.

The Appellants contended at the trial Court that on the 20th of May, 2015, at about 9am, Military

Personnel from 177 Guards Brigade Battalion broke into, raided and invaded the 1st Appellant’s office and infringed on the fundamental rights of the Appellants and thereafter forced the Appellants to reconnect electricity supply to the Barracks.

Upon being served with the Originating application, the 2nd Respondent filed a memorandum of conditional appearance on the 23rd of June, 2015 (pages 57-58 of the record) while the 4th Respondent also filed a memorandum of conditional appearance on the 1st of July, 2015 (page 60-61 0f the Record). The 4th Respondent in response to the Appellants’ suit, filed a Counter affidavit of 4 paragraphs on the 2nd of July, 2015 (pages 62-63 of the record) and in its written address in support of its Counter affidavit, challenged the joinder of the 4th Respondent as a party to the suit.

The 2nd Respondent on the 7th of July, 2015 filed a 22 paragraphs Counter Affidavit in opposition to the Affidavit of the 2nd Appellant (pages 71-75 of the record), it also filed a 5 paragraphs Counter Affidavit to the 3rd Appellant’s affidavit (pages 77-80 of the record), and filed another 18 paragraphs Counter

Affidavit to the 6th Appellant’s affidavit (pages 81-84 of the Records). The 2nd Respondent in its Written Address in support of its Counter Affidavits (pages 85-93 of the records), challenged the jurisdiction of the trial Court to entertain the Appellants’ suit.

The trial Court heard the objections together with the substantive application on the 8th of July, 2015 and in over-ruling the objections of the Respondents, delivered its judgment on the 17th of November, 2015. Dissatisfied with the judgment, the Appellants filed this present Appeal and transmitted the Record of Appeal to this Court on the 29th of March, 2016.

Predicated on the grounds earlier enumerated above, the Appellants have in their Brief of Argument filed on the 13th of May, 2016 and settled by Tessy Blessing Elayo, (Mrs.) distilled five (5) issues for determination to wit:
“1. Whether the three affidavits supporting the originating motion on notice are not unchallenged evidence which is deemed admitted by the 1st Respondent which entitles the Applicants to judgment in their favour.
2. Whether the trial Court can validly make findings of fact on

material issues and dismissing the Appellants’ claim on conflicting affidavits without calling oral evidence.
3. Whether the learned trial Judge correctly appreciated the case of the Applicant and the nature of evidence needed to prove their case.
4. Whether the particulars as contained in the Appellants’ three supporting affidavits have not sufficiently provided the required evidence which made out a case for the violation of their fundamental human rights.
5. Whether the learned trial Judge is not obligated to evaluate the affidavit evidence before him before reaching a decision that the Applicants have not discharged the legal burden of proof on them.”

Conversely, the Respondents’ Brief settled by G. W. Nanbol, Esq., was filed on the 11th of March, 2019 but deemed as properly filed on the 18th of March, 2019. The Respondents distilled a sole issue for determination to wit:
“Whether or not the trial Court rightly held that the Appellants’ failed to place before it, credible evidence in proof of the allegations made against the Respondents and thereby rightly dismissed the Appellants’ case.”

At the hearing of the Appeal on the 26th of January, 2021, learned Counsel to the Appellant, Olugbenga Owa, Esq., adopted the Appellants’ Brief of Argument as the argument of the Appellants. Likewise, the learned Counsel to the Respondent, G. W. Nanbol, Esq., adopted the Respondents’ Brief of Argument as the argument of the Respondents in contesting the Appeal.

I shall now proceed to consider the issues as argued by the respective learned Counsel to the parties.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE ONE:
“WHETHER THE THREE AFFIDAVITS SUPPORTING THE ORIGINATING MOTION ON NOTICE ARE NOT UNCHALLENGED EVIDENCE WHICH IS DEEMED ADMITTED BY THE 1ST RESPONDENT WHICH ENTITLES THE APPLICANTS TO JUDGMENT IN THEIR FAVOUR?”
Learned Counsel to the Appellants prefaced his arguments on this first issue with the submission that the 1st Respondent who according to him is the Commanding Officer of the 177 Brigade of Guards did not personally file any Counter Affidavit to controvert the allegations that he authorized the raid and personally led troops to the 1st Appellant’s premises as contained in the

Affidavit of the 2nd Appellant. Learned Counsel to the Appellants has argued that the Deponent to the Respondents’ Counter Affidavit, one Lt. Col. Ukpe of the Department of Legal Services of the Army, had the consent of only the 2nd Respondent to depose to the Counter affidavit and as such, according to learned Counsel for the Appellants, the 1st Respondent did not deny the facts stated in affidavit of the 2nd Appellant. Learned Counsel also pointed out that two of the Counter Affidavits were headed with the 2nd Respondent as title. Learned Counsel also made reference to some paragraphs of the affidavits evidence to support his contention.

Learned Counsel to the Appellants has argued that from the various Counter-Affidavits deposed to by the Respondents, it is only the Counter-Affidavit to the 5th Applicant (6th Appellant’s) Affidavit in support of the Originating process that the Deponent claimed to have the consent of the 1st Respondent to react to facts but argues that the facts in that Counter-Affidavits are not in accordance with Section 115 (4) of the Evidence Act, 2011 as the deponent did not categorically state the source of his information.

Learned Counsel to the Appellants has argued that, since the Memorandum of Appearance and the Application for extension of time was filed only on the 2nd Respondent’s behalf, it therefore means that the 1st, 3rd and 5th Respondents were not represented in the case and as such, whatever purported defense put forward for the 1st Respondent, goes to no issue. According to him, all the averments relating personally to the 1st Respondent, having not been challenged by the 1st Respondent, are therefore deemed established. To support his argument, learned Counsel to the Appellants referred to the trite position of the law that where evidence is unchallenged, uncontroverted, and is credible, the trial Court is bound to accept it as was decided variously in BADEJO V. FEDERAL MINISTRY OF EDUCATION & ORS. (1996) 8 NWLR (Pt. 464) 15; NIPO & ORS v. THOMPSON (1969) 1 NWLR 990 AT 103 and UREDI v. DADA (1988) 1 NWLR 237.

The Learned Counsel submits that the 1st Respondent is vicariously liable for all the other Respondents who are his employers and argues that an action cannot be defeated in law merely because a plaintiff did not join the

servant who committed the tort. According to him, the learned trial Judge was in error when he said “No principal party is before me the soldier boys”. To buttress his point, the learned Counsel has referred this Court to the case of THE HON. MINISTER OF DEFENCE & ORS v MRS ETTA BASSEY EPHRAIM; Appeal No: CA/C/109/2011 where the Calabar Division of this Court held the Army vicariously liable for the actions of one of its Commanding Officers in the course of their duties. He finally submitted on this issue that in compliance with the provisions of the Armed Forces Act, Cap A.20 LFN 2004, the 2nd Respondent is vicariously liable for the actions of the 1st Respondent.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE TWO:
“WHETHER THE TRIAL COURT CAN VALIDLY MAKE FINDINGS OF FACT ON MATERIAL ISSUES AND DISMISSING THE APPELLANTS’ CLAIM ON CONFLICTING AFFIDAVITS WITHOUT CALLING ORAL EVIDENCE?”
Arguing the second issue, the learned Counsel to the Appellants submitted that, assuming without conceding that the affidavit evidence of the Appellants was validly denied and conflicting as found by the learned trial Judge,

the conflicting affidavits would have been resolved by calling evidence. He argued that a Court of law has no competence to suo motu reconcile conflicting affidavits without calling oral evidence except where there is sufficient documentary evidence. To support his argument, he relied on NATIONAL BANK V. ARE BROTHERS (1977) 6 S.C. 97; EBOH v OKI (1974) 1 SC 179; OLU-IBUKUN v OLU-IBUKUN (1974) 2 SC 41; NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt 135) 688 amongst other authorities.

He further contended that, in this particular case, where there are conflicting affidavit evidence about facts in issue without documentary evidence, the trial Court ought to have ordered the parties to call oral evidence to resolve the conflicts adding that the failure of the trial Court to call for oral evidence to resolve the conflicts occasioned a miscarriage of justice and its Ruling ought to be set aside by this Court.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE THREE:
“WHETHER THE LEARNED TRIAL JUDGE CORRECTLY APPRECIATED THE CASE OF THE APPLICANT AND THE NATURE OF EVIDENCE NEEDED TO PROVE THEIR CASE?”

The learned Counsel to the Appellants submitted on this issue that the learned trial Judge did not correctly appreciate the case of the Appellants when he held that the Appellants did not prove their case and more specifically did not produce the documentary evidence to show that the Army formation at 177 Guards Brigade were owing electricity bills. According to the learned Counsel, the nature of evidence required to prove the Appellants’ case was misconceived by the trial Court as the action was not one for the recovery of unpaid electricity bills, but rather an action for the enforcement of fundamental rights which the nature of the raid could not have provided a basis for documentary evidence. He finally submitted on this issue that evidence must be directed and confined to the proof or disproof of the issues and to support the above submission, he relied on PASCUTTO V ADECENTRO (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE FOUR:
“WHETHER THE PARTICULARS AS CONTAINED IN THE APPELLANTS’ THREE SUPPORTING AFFIDAVITS HAVE NOT SUFFICIENTLY PROVIDED THE REQUIRED EVIDENCE WHICH MADE OUT A

CASE FOR THE VIOLATION OF THEIR FUNDAMENTAL HUMAN RIGHTS?”
On this fourth issue, the learned Counsel to the Appellants has argued that the learned trial Judge erred in law when he held that the Appellants did not provide any evidence to show that their rights were infringed when there were three affidavit evidence which were wrongly evaluated.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE FIVE:
“WHETHER THE LEARNED TRIAL JUDGE IS NOT OBLIGATED TO EVALUATE THE AFFIDAVIT EVIDENCE BEFORE HIM BEFORE REACHING A DECISION THAT THE APPLICANTS HAVE NOT DISCHARGED THE LEGAL BURDEN OF PROOF ON THEM?”
On this fifth issue, the learned Counsel to the Appellants has submitted that the learned trial Judge is obligated and duty bound in law to appraise, evaluate and consider the Affidavit evidence before him in support of the Application before making a finding and arriving at a conclusion. To back up his submission, Counsel has referred us to F.G.N. v. A.I.C. Ltd. (2006) 4 NWLR (Pt. 970). According to learned Counsel, a proper evaluation of the affidavit evidence would have revealed that there was an energy crisis during that

period that led to a total national blackout. He contended that had the trial Court considered the Daily Sun Newspaper of 28th May, 2016 attached to the Affidavit of Urgency though not attached to the Originating Motion, the Deponent of the Respondents’ Counter-Affidavit would not have been believed. It was further submitted that a Court is entitled to look at the contents of its file and records and referred to them in consideration of any matter before it. To support his position, he relied on WEST AFRICAN PROVINCIAL INSURANCE CO. LTD v. NIGERIAN TOBACCO CO. LTD. (1987) 2 NWLR (Pt.56) 299; OSAFILE v ODI LTD. (1990) 3 NWLR (Pt. 37) 30; CHIEF AGBAISI & ORS v. EBIKOREFE & Ors (1997) 4 NWLR (Pt. 502) 630 amongst others.

In conclusion, the learned Counsel to the Appellants submitted that the three Affidavits filed in support of their Originating Motion had sufficiently made out a case for the violation of the Appellants’ fundamental rights to liberty and dignity. In conclusion, he urged this Court to set aside the decision of the learned trial Judge and enter judgment for the Appellants.

ARGUMENTS OF THE LEARNED COUNSEL TO THE

RESPONDENTS ON THEIR SOLE ISSUE:
“WHETHER OR NOT THE TRIAL COURT RIGHTLY HELD THAT THE APPELLANTS’ FAILED TO PLACE BEFORE IT CREDIBLE EVIDENCE IN PROOF OF THE ALLEGATIONS MADE AGAINST THE RESPONDENTS AND THEREBY RIGHTLY DISMISSED THE APPELLANTS’ CASE?”
On this sole issue, the learned Counsel to the Respondents argued that the allegations as contained in the Appellants’ Originating Process against the Respondents ranges from, raiding, invasion, forceful entry, beating up, torture, arrest, harassment, effecting inhuman and degrading treatment, forced labour, intimidation, coercion and arbitrary detention of the Appellants. He therefore submitted that, allegations in pleadings are not evidence and until a party is able to lead credible evidence in proof of his case, his case is bound to be dismissed as the trial Court did when it held that: “From the totality of the submissions of the parties, it is my considered view that the applicants have failed to prove the allegations made against the respondents.”

The learned Counsel to the Respondents further submitted that the Appellants did not lead a scintilla of

evidence in proof of their allegations. He took the view that in cases of this nature, pleadings are not filed but rather it is the affidavit in support of the originating summons on notice that takes the place of pleadings. To support his submission, he referred to P.& C.H.S. CO. LTD v. MIGFO (NIG.) LTD. (2013) 18 NWLR (Pt. 1333) 609.

According to learned Counsel to the Respondents, since it is the affidavit in support of an Originating Motion on Notice that constitutes/and takes the place of pleadings, credible evidence must be led in proof of the Depositions contained in the Affidavit in support of the Originating Motion on Notice. To support his contention, Counsel referred to OJO V. GHARORO (1999) 8 NWLR (615) 390; APROFIM ENT. CONST. LTD v. SIDOV LTD (2006) 13 NWLR (Pt. 966) 76; DUROSARO V. AYORINDE (2005) 8 NWLR (Pt.927) 425.

The learned Counsel to the Respondents also submitted that since most of the allegations of the Appellants were criminal in nature, the Appellants had the onerous burden of proving their case beyond all reasonable doubts as provided for in Section 135(1) of the Evidence Act, 2011 (as amended). He was of the view that

the Appellants’ failure to lead credible evidence to establish that the incident was reported to the police, medical report to show they were treated as a result of the torture and beatings, and the alleged outstanding NEPA Bill to show that the Respondents were actually owing, as well as the Letters of Demand made to the Respondents to pay up the outstanding NEPA Bills, led the trial Court to arrive at the irresistible conclusion dismissing the Appellants’ case.

The learned Counsel therefore urged this Court to uphold and affirm the decision of the trial Court and accordingly dismiss this Appeal. He supported his contention with the case of FAJEMIROKUN v. C.B. (C.L) (NIG.) LTD (2002) 10 NWLR (Pt 774) 110; where this Court held that:
“For an applicant alleging infringement of his fundamental human rights to succeed, he must place before the Court all vital evidence regarding the infringement or breach of such rights. It is only thereafter that the burden shifts to the respondents. Where that has not been done, or where scanty evidence was put up by the applicant, the trial Court can strike out such application for being devoid of

merit. The trial Court was right in holding that the application was devoid of any merit as the appellant failed to provide sufficient facts in his supporting affidavit to establish that his fundamental right was infringed.”

RESOLUTION OF ISSUES:
I have carefully gone through the Record of Appeal and read the Ruling of the trial Court which dismissed the Application of the Appellants and I have also considered the brilliant arguments of Counsel to the parties as contained in their respective Briefs of Argument. Be that as it may, before proceeding to one way or the other resolve the issues raised by the parties, I have discovered that both the Appellants and Respondents failed to show the Grounds from which their issues for determination were distilled. It is worthy to note that the Appellants raised eight (8) Grounds of Appeal and also distilled five (5) issues for determination in this Appeal while the Respondents formulated a sole issue for determination.

It is trite that where issues for determination are not distilled from Grounds of Appeal, the Grounds of Appeal are ordinarily deemed abandoned and the issues incompetent.

view to doing substantial justice to both parties, which is the preoccupation of the Court. See Dada V. Dosunmu (supra) at 156 paragraphs E-G. The Supreme Court has admonished Courts on doing substantial justice thus: In such a situation the Court can on its own take a close look at the grounds of appeal and issues as formulated and in order to do substantial justice between the parties which is the preoccupation of the Court, consider the said issues in its judgment in the discharge of its obligation to the parties under the Constitution.” In certain appropriate cases, the Courts can and in fact do formulate their own issues from the grounds of appeal where the issues formulated by the learned counsel to the appellant are found to be either inadequate or grossly or fundamentally defective.”
Predicated on the authority above, I am also bound to do substantial justice to this Appeal irrespective of the seeming irregularities on the part of the Appellants and the Respondents.

As a preliminary point in the determination of this Appeal, a look at the Parties in view of the recent decisions of this Court invites me to once again revisit the

locus of the Appellants jointly as Applicants before the trial Court. Although, it is the general and established position of the law that once a Court raises an issue suo motu, it is duty bound to call the parties to address it on the issue so raised, however, an exception to the general rule does exists and it is where the issue raised by the Court suo motu is an issue of law or touches on the jurisdiction of the Court. See EFFIOM & ORS vs. CROSS RIVER STATE INDEPENDENT ELECTORAL COMMISSION & ANOR (2010) LPELR- -1027 (SC); MALLAM UMARU KWAGE & ORS v. UPPER SHARIA COURT GWANDU & ORS (2017) LPELR – 42508 (CA).

Armed with the above authorities, the preliminary issue of jurisdiction that begs for determination is: “Whether a joint application can be filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules”?
In answering this question in the negative, I rely on the very recent decision of this Court in CHIEF OF NAVAL STAFF ABUJA & ORS v. ARCHIBONG & ANOR (2020) LPELR-51845 (CA); where it was held and I quote:
“Before determining whether or not the

fundamental rights (Enforcement procedure) Rule, 2009, contemplates a joint or group application, let me quickly state that the applicant at the trial Court are husband and wife and therefore brought a single application for the enforcement of their fundamental rights. Section 46(1) of the 1999 Constitution states in clear terms that: – “Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.” Neither the 1999 Constitution nor the Fundamental Rights (Enforcement Procedure) Rules 2009 defines the word ‘person’ but in the context of Section 46(1) of the Constitution and Order 1 Rule 2(1) of the extant Fundamental Right (Enforcement Procedure) Rules it refers to an individual. The adjective used in both provisions in qualifying who can apply to a Court to enforce a right is “any” which also denotes to singular and does not admit pluralities in any form. It is thus an individual right as opposed to collective right. I am however not unmindful of the preamble to the extant Rules which

encourages and welcome public interest litigations in human rights field which in effect provides that no human rights case may be dismissed or struck out for want of locus standi. The contention here is not on the rights of the applicants to institute the action but rather on the propriety of bringing joint action. In the REGISTERED TRUSTEES F.T.C.C.N v. IKWECHEGH (2000) 1 NWLR (Pt. 683)1 at 8 also following the decision in C.C.B. (NIG) PLC V. ROSE (1998) 4 NWLR (Pt 544) 37 and AYINDE V. AKANJI (1988) 1 NWLR (Pt. 66) 80, it was emphatically held that if an individual feels his fundamental right has been violated he should take action personally for the alleged infraction. In effect, it is a wrong joinder of action and incompetent for different individuals to join in one action to enforce different causes of action. The fact in this case is similar with that of UDO v. ROBSON & ORS (supra) wherein this Court per Adah J.C.A. held that it is improper for two or more persons to apply jointly for the enforcement of their fundamental rights. Perhaps, it may be necessary to restate the legal position that preamble does not prevail over the clear words used in the

operative part of an enactment. It does not control the plain words of the enactment. In OGBONNA V. A.G. IMO STATE (1992) LPELR – 22871 at 25, Nnaemeka-Agu, J.S.C. said: – “It is necessary to note that a preamble to an enactment is as it were its preference or introduction the purpose of which is to portray the interest of the framers and the mischief they set out to remedy. It may sometimes serve as a key to open the understanding of the enactment.” In the light of the foregoing and considering the fact that there is no ambiguity in the words used both in Section 46(1) of the 1999 Constitution and Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules 2009, the preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009; cannot override the plain words used in both the Constitution and the extant rules. I cannot therefore deviate from the previous decision which prohibits joint and or group application for the enforcement of fundamental rights”.

Flowing from the above, an action under the Fundamental Rights (Enforcement Procedure) Rules is a peculiar action. It is a kind of action which may be

considered as “Sui Generis” i.e. it is a claim in a class of its own though with closer affinity to a civil action than a criminal action.

In this appeal under consideration, the application was brought by 12 separate Applicants in contravention with the wordings of Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules 2009. It is worthy to reiterate that the adjective used in both provisions in qualifying who can apply to a Court to enforce a Right is “any” which denotes singular and not plurality. Therefore, it is an individual rights and not collective rights that is being contemplated. In my humble view, any application filed by more than one person to enforce a right(s) under the Fundamental Rights (Enforcement Procedure) Rules, 2009 is incompetent and liable to be struck out. I therefore find no difficulty in dismissing this Appeal and striking out the suit for being grossly incompetent and it is hereby so ordered.

Normally, having dismissed this appeal and struck out the suit, this ought to be the end of this

Appeal. But in the event the apex Court holds that my view on the joint application for the enforcement of fundamental rights is wrong, I will proceed to resolve the Appeal on the merit.

In so doing, it will be expedient to formulate an independent issue for the just determination of this Appeal as the issues formulated by the parties may not in my opinion, lead to a proper determination of this Appeal. My position is predicted on the authority of SHA v KWAN (2000) 8 NWLR (Pt 670) 685 at 700; where the Supreme Court stated that – “The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed out above, reframe the issues by the parties if in its view, such issues will not lead to proper determination of the appeal.”

Having analyzed the arguments of the Parties in this Appeal, the sole issue I deem fit for the just determination of this Appeal is thus:
“WHETHER THE TRIAL COURT PROPERLY EVALUATED THE AFFIDAVITS EVIDENCE OF THE APPELLANTS BEFORE COMING TO THE CONCLUSION THAT THE APPELLANTS FAILED TO LEAD CREDIBLE EVIDENCE

IN PROOF OF THE ALLEGATIONS MADE AGAINST THE RESPONDENTS?

It is in my view pertinent to commence the determination of this issue with the trite position of the law that an Applicant who approaches the Court for enforcement of his fundamental rights must prove the existence of those rights and its infringement. Therefore, what this Court must determine is whether the Appellants were able to establish with credible evidence, the existence of those facts and infringement of their rights. To do that, the Affidavit in support of the Applicants’ Application for enforcement of their fundamental rights and the Respondents’ reaction to those averments as contained in the Counter-Affidavits are the ready raw materials.

From the facts of this Appeal, the Appellants filed two substantive affidavits in support of their Originating Motion on Notice. In reaction thereto, the Respondents filed a Counter-Affidavit to each of the Affidavits. From an overview of the depositions in the Appellants’ Affidavits, it is glaring that the Appellants allegations were predicated on violence meted on them in their work place and illegal detention by the Officers

of the Nigerian Army. These facts were denied by the 2nd Respondent’s Counter affidavit on behalf of the 1st, 3rd and 5th Respondents while the 4th Respondent denied his knowledge of the allegations in totality and the Appellants provided no further proof of their allegations by way of leading credible evidence.

has the burden to prove by cogent convincing and credible evidence, the facts as alleged by him, as construing the breach or infringement of the Fundamental right to freedom from inhuman and degrading treatment or torture as guaranteed him by Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria. General and wide allegations of such breach and infringement will not suffice….” It must be clearly stated that a bare and generalized allegation of arrest and detention cannot serve as sufficient proof of infraction on the rights of an Applicant, he must go further to advance concrete, cogent and convincing reasons for the Court to find in his favour. The Court must not give to speculation, conjecture or logical deduction, applicant has a duty to furnish in substantial details the fact of his arrest and detention, he must in other words particularize the particulars of his arrest and detention. A Court of law must not render its self-gullible or vulnerable to guess-work….”

The law is settled that where a person approaches a Court of law by way of an Application for redress of a breach or contravention of any of

his guaranteed rights under Chapter IV of the Constitution, as the person or party making the assertion or allegation against another person or party, the legal burden of initial proof of the assertion is placed on him by the law, unless or except the assertion was expressly or by necessary implication or presumption, admitted by the other person or party. See Sections 131, 132, 133(1) and 123 of the Evidence Act, 2011, respectively. It is not enough for a party or person to approach a Court of law with an application calling or praying for protection of his fundamental rights by way of declarations, injunction and/or other forms of reliefs on the basis of alleged threat or breach or contravention of such right. For him to be entitled to such redress or reliefs of protection, he must first produce reasonably sufficient and credible evidence before the Court to show and satisfactorily establish a real and factual breach or contravention of the right alleged. Until a person produces evidence which prima facie shows or established a factual breach or contravention of this fundamental rights guaranteed under Chapter IV of the Constitution, his application before a

Court for the enforcement of such right will fail and be dismissed out-rightly.
It is worthy to mention that, after thoroughly going through the well-considered judgment of the learned trial Judge, I find no fault in his decision especially as he had the opportunity to properly evaluate the affidavits evidence of the parties first hand. I agree in totality with the submission of the learned Counsel to the Respondents and the authority of FAJEMIROKUN v. C.B. (C.L) (NIG.) LTD (Supra); relied on by him and hold that the Appellants failed to establish by cogent and credible evidence the allegations of infringement of their rights.

Having arrived at this conclusion, I firmly believe the journey of this Appeal has reached its final bus stop.

Consequently, I find no merit in the Appeal and accordingly, same is hereby dismissed. The Ruling of the High Court of Nasarawa State delivered by His Lordship, Honourable Justice Haruna A. Offo on the 17th of November, 2015 is hereby affirmed and I make no order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother, Ignatius Igwe Agube, PJ.C.A. made available to me a draft copy of the lead

judgment just delivered, in which the appeal was determined as lacking in merit and thereby dismissed. I totally adopt my learned brother’s reasoning and conclusion reached therein as mine. I also found no fault in the lower Court’s decision especially as she had the opportunity to properly evaluate the affidavit evidence of parties first hand.

Accordingly, the Ruling of the High Court of Nasarawa State delivered by his Lordship, Hon. Justice Haruna A. Offo on the 17th of November, 2015 is hereby affirmed with no costs to any parties.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance, the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, J.C.A. and I am in complete agreement with the reasoning and resolution arrived at in the lead judgment.

On whether a class action in alleged breach of fundamental right is feasible, I agree with the findings of the trial Judge and the affirmation in the lead judgment that it is not. The Constitutional provision relevant here, Section 46 of the 1999 Constitution, specifically states that, any person who alleges that his fundamental right has been or is likely

to be breached can approach a High Court in that State for redress. The right can be enforced on individual basis and not by collective action. It is faulty for the appellants to file a single affidavit, the alleged breach was not equally or evenly violated and therefore after a finding that the breach was established, how would the Court appropriate the reliefs and compensation for possible enforcement by each applicant, since the breach is not of the same nature and degree? Here, the 5th Appellant alleged she was forced to expose her breast in public, that obviously is an allegation of inhuman and degrading treatment for a woman and it cannot relate to the male appellants. Therefore, how would the Court do a surgical operation or separation while considering the claim? It is not the duty of the Court to do a surgical operation in order to grant any of the reliefs to particular applicants. The joint affidavit is incompetent.

The Court will not make an order that is practically impossible to enforce, see ADEOGUN & ORS V FASHOGBON & ORS (2008) LPELR-131(SC) where it held thusly:
”It is a settled principle of law that a Court would not act in vain or

give an order which cannot be enforced.” Per OGUNTADE, J.S.C.

Flowing from above, I join my learned brother in dismissing this appeal and also abide by the other orders made in the lead judgment.

Appearances:

V. Zuanah, Esq. holding the Brief of Olugbenga Owa, Esq. For Appellant(s)

N. Nanbol, Esq. For Respondent(s)