ADELEYE DELE ALEX & ANOR v. CHIEF OF NAVAL STAFF & ORS
(2019)LCN/12613(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/L/984/2016
RATIO
EVIDENCE: WHERE THERE IS CONFLICT IN EVIDENCE
“The law has remained well settled to the effect that where there is clear conflict in the affidavit evidence placed before the Court, on a crucial point or issue for its determination, in order for the Court to come to a fair decision on it, the proper course for the Court to embark upon, would be to take oral evidence from the parties on the matter for it to resolve such conflicts. Akinsete v. Akindutire (1966) 1 All N. L. R. 147; Eboh & Anor v. Oki & Anor (1974) 1 S. C. 179 @ 189- 190; Olu – Ibukun & Anor v. Olu – Ibukun (1974) 2 S. C. 41 @ 47-48; Falobi v. Falobi (1976) 1 N. M. L. R. 169 @ 178; National Bank of Nig. Ltd v. Are Brothers (Nig) Ltd (1977) 6 S. C. 99 @ 107; Okoye v. Lagos State Government (1990) 3 N.W.L.R. (Pt. 136) 115 @ 123- 124; Duwin Pharmaceutical & Chemical Co. Ltd v. Beneks Pharmaceutical and Cosmetics & Ors (2008) LPELR- 974 (SC); (2008) 4 N.W.L.R. (Pt.1077) 376; Ezechukwu & Anor v. Onwuka (2016) LPELR- 26055 (S.C.).” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. ADELEYE DELE ALEX
2. ALI JOHN Appellant(s)
AND
1. CHIEF OF NAVAL STAFF
2. FLAG OFFICER COMMANDER (WEST)
3. COMMANDING OFFICER, BEECROFT Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the decision of the Lagos State High Court of Justice, which was delivered on 13th June, 2016, whereof the appellants’ application for the enforcement of their fundamental rights, was dismissed.
The appellants who were crew members of the Vessel “MT REDEEMER” belonging to MOD OIL AND GAS Ltd, were arrested by officers and men of the respondents on 25th August, 2015, upon an intelligence report that the aforementioned vessel was not registered with the relevant authorities, for it to operate legally. The appellants were detained from 28th August, 2015 to 19th August, 2016 and handed over to the Nigerian Maritime and Safety Agency (NIMASA) for further investigations. The alleged arrest and detention of the appellants gave rise to their action against the respondents at the Court below, where they prayed for declaratory, injunctive and compensatory reliefs, thus:constitute gross infringement
a. A declaration that as ‘a citizen’ of this country, the Applicants’ rights to personal liberty and freedom of movement are guaranteed under Sections 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria and Articles 4, 5, 6 & 12 of the African Charter on Human and Peoples Rights CAP 9 LFN 2004.
b. A declaration that the arrest and detention of the Applicants by the Respondents since 28th of August, 2015 on a Vessel “MT REDEEMER” without being charged to Court are unwarranted, unjustified, illegal, unconstitutional and violations of their fundamental rights to personal liberty and freedom of movement.
c. An order of this Honorable Court directing the Respondents, whether by themselves, directly or through their agents and/or servants for immediate release of the Applicants from the Vessel MT REDEEMER which is in their custody.
d. An Order of perpetual injunction restraining the Respondents, whether by themselves, directly or through their agents and/or servants from further inviting, summoning, arresting, questioning, interrogating, detaining, harassing, victimization, torturing and/or threatening, to arrest, detain and torture the Applicants.
e. The sum of N100,000,000.00 (One Hundred Million Naira Only) each to the Applicants being general, aggravated and exemplary damages for wrongful and illegal deprivation of the Applicants’ constitutionally guaranteed rights to Personal liberty and freedom of movement.
GROUNDS FOR SEEKING RELIEF
a. By virtue of the provisions of Sections 35 and 41 of the Constitution and Articles 4, 5, 6 and 14 of the African Charter on Human and Peoples’ Rights CAP A9 LFN 2004, the Applicants are entitled to their personal liberty and freedom of movement and it is only in strict compliance with the conditions stipulated in the Constitution and the Charter that they may be deprived of the said rights.
b. The nature of the above constitutionally guaranteed rights is that the government and its agencies and particularly the Respondents and any other person whosoever must not by any means create situations around the person of the Applicants and/or their immediate environment that make the enjoyment of these rights impracticable
c. where derogation from the said rights becomes inevitable under the circumstances permitted by the Constitution and other applicable laws such as in the investigation of an allegation of crime, the provisions of the Constitution and other relevant laws must be strictly followed.
d. The Applicants are staff of MOD OIL AND GAS LTD of No. 5, Calcuta Crescent, first Floor, Tantalizer Building, Apapa, Lagos State and crew members of a Vessel “MT REDEEMER”.
e. The 1st Defendant is the Head of Nigerian Navy and who is responsible for formulating and executing policies towards the highest attainment of national security and operational competence of the Nigerian Navy.
f. The 2nd Defendant is the Head of Nigerian Navy, Western Naval Command, Apapa, Lagos State and who is responsible for the protection and policing of the nation’s maritime environment.
g. The 3rd Defendant is Head of the operational base of Nigerian Navy at Apapa.
h. On the 28th of August, 2015, the Applicants’ employer’s Vessel “MT REDEEMER” was arrested by men of the Respondents around Kirikiri axis and within the area of command and operation of the 2nd and 3rd Respondents where the said Vessels was undergoing repairs and maintenance work.
i. With the same operation, the Applicants were arrested and detained on the vessels and all pleas to have them releases since 28th of August, 2015 yielded no result.
j. Thus, the continued detention of the Applicants by the Respondents without being charged to Court since 28th of August 2015 constitute gross infringement and violation of the Applicants’ personal liberty guaranteed and protected by the Constitution of the Federal Republic of Nigerian and the African Charter on Human and Peoples Rights.
k. The conducts of the Respondents are arbitrary, illegal, unlawful, harsh, oppressive, unconstitutional and therefore void.
The applicants filed an affidavit, containing 7 paragraphs and a written address in support of the application.
The respondents resisted the claim against them by filing a Counter Affidavit of 25 paragraphs and a written address in opposing the application. In his judgment, the learned trial judge found for the respondents and dismissed the appellants’ action as being unmeritorious. The appellants, being unhappy with the decision against them, approached this Court in order for the said decision to be reversed. They filed a notice of appeal containing four grounds. And in order to activate the prosecution of the appeal, the appellants were armed with the Appellants’ brief of argument which was dated and filed on 5th July, 2017 but deemed filed by this Court on 21st June, 2018. The Respondents’ brief of argument, dated and filed on 26th September, 2018 was deemed filed on 10th December, 2018. The Appellants’ reply brief dated 12th November, 2018 and filed on 13th November, 2018 was deemed filed on 10th December, 2018.
In the appellants’ brief of argument, prepared by La – Kadri Lukman, Esq., he nominated two issues therein, for the determination of the appeal, to wit :
1. Whether the appellants can voluntarily remain in an impounded vessel for 12 months.
2. Whether the particulars as contained in the appellants’ processes have not sufficiently made out a case for the violation of their fundamental human rights.
Mallam J. A. Adamu, Deputy Director & Teju Adeyanju, Esq., Senior State Counsel, who prepared the respondents’ brief of argument, adopted the two issues, suggested by the appellants’ learned counsel, for the resolution of the appeal.
In my consideration and determination of the appeal, I shall be guided by issue 2 above which I think suffices for the resolution of the appeal.
Appellants’ Arguments:
It is the contention of appellants’ counsel, that the “MT Redeemer” vessel was arrested along with the appellants, who were the crew members of the said vessel on 28th August, 2015 and that it is unreasonable for anyone to believe the respondents’ assertion that it was only the vessel that was arrested and not with its crew members. He submitted that it would be unreasonable for any person to believe that the appellants would voluntarily have chosen to remain on the arrested vessel which was under investigation, just for them to look for a cause of action against the respondents. And that if the appellants were not arrested with the vessel, why were they hand over with the vessel, to the Nigerian Maritime and Safety Agency on 19th August, 2016, even after the ruling at the Court below, rendered on 13th June, 2016? He insisted that the affidavit evidence in support of the appellants’ application for the enforcement of their fundamental rights ought to have been preferred to paragraphs 16, 17 and 18 of the respondents’ counter affidavit, because according to him, the respondents’ assertion to the effect that it was the appellants who voluntarily stayed back on the impounded vessel even though they were not arrested, is unreasonable. He referred to Buhari v. INEC (2008) 19 NWLR (1120) 246 to the effect that where a detention of any person is not reasonable, such a detention will be declared unlawful.
He therefore insisted that the respondents, had unlawfully and illegally detained the appellants from 28th August, 2015 till 19th August, 2016 because according to him, the appellants who were part and parcel of the arrested vessel, if they were not arrested with the vessel in question, could not have reasonably and voluntarily stayed back on the said impounded vessel for (12) twelve months. And that the unlawful detention of the appellants by the respondents in the circumstances of this matter was an infringement of the fundamental rights of the appellants guaranteed under Section 35(1) of the 1999 Constitution of the Federal Republic Nigeria, as amended and Sections 4,5 6 and 41 of the African Charter on Human and People’s Rights, Laws of the Federation, 2004; with respect to the appellants’ rights to freedom of movement, respect and security of their individual persons, hence the appellants, according to him, are entitled to damages against the respondents.
Respondents’ Arguments:
The learned respondents’ counsel, submitted that by virtue of the letter dated 20th October, 2015 from the appellants’ employers which was addressed to the respondents with respect to the Request for the Release of the MT REDEEMER vessel in question, no mention was made with respect to the release of the appellants, because according to him, the appellants had chosen to voluntarily stay on the arrested vessel, which was why the appellant’s’ employers did not bother to ask for their release. He also submitted to the effect that since the appellants did not show by their affidavit evidence that they have a reasonable cause of action in this matter against the respondents, there is no question of a beach of their fundamental rights. He referred to paragraphs 16, 17, 18 and 19 of the respondents’ Counter Affidavit against the appellants’ application for the enforcement of their fundamental rights. Placing reliance on Exhibits C and D, which were the letters written by the appellants’ employers, requesting for only the release of the arrested vessel by the respondents, and not of the appellants, he insisted that the learned trial judge was right in his findings to the effect that, it was the appellants who voluntarily remained on the aforementioned arrested vessel and not that they were arrested with the said vessel, by the respondents. He therefore insisted that there was no infringement of the appellants’ fundamental rights, pursuant to the 1999 Constitution of the Federal Republic of Nigeria, as amended and the African Charter on Human and People’s Rights, Laws of the Federation of Nigeria, 2004.
Resolution:
I have perused the affidavit evidence placed before the Court below, by both parties. It is expedient that some excerpts of the same be reproduced herein, for ease of reference and appreciation. Paragraphs 6 and 7 of the Affidavit in support of the appellants’ application for the enforcement of their fundamental rights, are germane, to the effect that:
“6. I was informed by Mr. Adebola Omodele, the Managing Director/ CEO of MOD OIL AND GAS LIMITED (Employer of the Applicants) on the 1st March, 2016 at around 12:45 pm and I verily believe same as follows:
a. The Applicants are employees of MOD OIL AND GAS LIMITED a Company incorporated in accordance with provision of Companies and Allied Matters Act; 2004, and which carries on its business at No.58, Calcultta Crescent, First Floor Tantalizer Building, Apapa-Lagos and crew member of a Vessel MT REDEEMER.
b. In line with the Nigerian laws in carrying out the business of shipping, buying, selling, intermediation, haulage and trucking of Petroleum Products in Nigeria, the Applicants’ employer registered with all relevant authorizes’ to wit: Nigerian Port Authority, Nigerian Maritime Administration and Safety Agency, Federal, Fire Service, Nigerian Licensed Ship-Chandlers’s Association and all other relevant agencies and got approvals, The relevant certificates permit documents are hereby attached and marked Exhibit A.
c. Also, the Applicant’s employer registered with the Respondents and always sought and got necessary approvals from the Respondents in every transaction its vessels embark upon. Some of the Applicant’s employer’s application and approvals from the Respondents especially on the Vessel MT REDEEMER are hereby attached and marked Exhibit B.
d. On the 28 of August, 2015, the Applicants’ employer’s Vessel “MT’ REDEEMER” was arrested by men of the Respondents around Kirikiri axis and within the area of command and operation of the 2nd and 3rd Respondents where the said Vessel was undergoing repairs and maintenance work.
e. In furtherance to paragraph 3 (d) above and prior to the arrest of the Vessel MT REDEEMER, the vessel has not sailed for more than a month.
f. On the day of the arrest of the vessel, the Applicants were on board and they were arrested and detained on the vessel without any charge against them.
g. However, on the 20th of October, 2015, the Applicants’ employer wrote a letter to the 1st Respondent’ and requested for the release of its Vessel and its crew members from the custody of the 2nd and 3rd Respondents, but the Respondents refused, failed and/or neglected to release the vessel and the Applicants. The Applicants’ employer’s letter dated 20th October, 2015 to the 1st Respondent is hereby attached and marked Exhibit C.
h. Also, three (3) months’ thereafter, particularly on the 26th of January 2016, the applicants’ employer wrote another letter and visited the 2nd Respondent wherein the 2nd Respondent called the 3rd Respondent and requested for updates’ on the vessel “MT REDEEMER”. The 3rd Respondent confirmed to the 2nd Respondent that the vessel was arrested on false alert and promised to release the vessel and its crew member. Surprisingly, the Respondents still refused, failed and/or neglected to release the vessel and the Applicants. The Applicants’ employer letter dated 26th January, 2016 (mistakenly dated 2015) is hereby attached and marked Exhibit D.
i. All pleas to have the Applicants released since 28th of August yielded no result.
I was further informed by La-Kadri Lukman (Esq). the Counsel handling this matter On the 1st of March, 2016 and I verily belief as follows:
a. That the continued detention of the Applicants by the Respondents since 28th of August, 2015 on a Vessel “MT REDEEMER’: without being charged to Court are unwarranted, unjustified, illegal, unconstitutional and violations of their fundamental rights to personal liberty and freedom of movement.
b. It will be in the interest of justice to grant this application to order immediate release of the Applicants and restrain the Respondents from further unlawful harassment, arrest, detention, invitation, threat or from disturbing the Applicants’ liberty as guaranteed by the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights.”
The Respondents, in opposing the appellants’ application, filed a Counter Affidavit of 25 paragraphs, whereof at paragraphs 16, 17, 18 and 19, it was deposed thus:
“16. In response to paragraph 6(f), the Respondents only arrested the vessel and not the Applicants as alleged.
17. In response to paragraph 6(g), the vessel was under investigation and that the Applicants were not in any detention quarters or cell belonging to Respondents.
18. That the Applicants decided to remain with the vessel in soliciting, so as generate a cause of action. The Respondents deny paragraph 6(h) of the Applicants’ Application.
19. In response to paragraph 7 (a) of the Applicants’ Application, the Applicants are not in the Respondents’ custody.”
The Applicants/Appellants, at paragraphs 5 and 6 of their Reply to the Respondents’ Counter Affidavit, deposed thus:
5. In response to paragraphs 16, 17 and 19 of the Counter Affidavit, the Applicants were met on the vessel on the day the vessel was arrested and they were also arrested, the Applicants were firstly taken to the Respondents’ custody at Beecroft before being returned to the Vessel and remain detained on it with men of the Respondents guarding the Vessel. The Applicants are breadwinners with families
6. Also, in response to Paragraph 18 of the Counter Affidavit, the Applicants could not have chosen to remain or allowed by the Respondents to remain on an arrested vessel under investigation within the custody of the Respondents for over nine (9) months. The Applicants were arrested by the Respondents and still in the custody of the Respondents.”
Undoubtedly, there is a clear conflict in the affidavit evidence placed before the Court below, with respect to the vexed question of whether or not the appellants were arrested by and held in custody of the respondents. The learned trial judge, appeared not to have considered the import and implication of paragraphs 5 and 6 of the Applicants/Appellants Reply to the Respondents’ Counter Affidavit vide paragraphs 16, 17, 18 and 19 thereof. The law has remained well settled to the effect that where there is clear conflict in the affidavit evidence placed before the Court, on a crucial point or issue for its determination, in order for the Court to come to a fair decision on it, the proper course for the Court to embark upon, would be to take oral evidence from the parties on the matter for it to resolve such conflicts. Akinsete v. Akindutire (1966) 1 All N. L. R. 147; Eboh & Anor v. Oki & Anor (1974) 1 S. C. 179 @ 189- 190; Olu – Ibukun & Anor v. Olu – Ibukun (1974) 2 S. C. 41 @ 47-48; Falobi v. Falobi (1976) 1 N. M. L. R. 169 @ 178; National Bank of Nig. Ltd v. Are Brothers (Nig) Ltd (1977) 6 S. C. 99 @ 107; Okoye v. Lagos State Government (1990) 3 N.W.L.R. (Pt. 136) 115 @ 123- 124; Duwin Pharmaceutical & Chemical Co. Ltd v. Beneks Pharmaceutical and Cosmetics & Ors (2008) LPELR- 974 (SC); (2008) 4 N.W.L.R. (Pt.1077) 376; Ezechukwu & Anor v. Onwuka (2016) LPELR- 26055 (S.C.).
The immutable wisdom in the above principle of the law, is that the Court in the face of a persisting conflict in the affidavit evidence of the parties on a crucial issue, without taking oral evidence from the deponents of the affidavits in question or from other witnesses in respect of the issue, is not permitted to prefer one deposition to the other. In the instant case, the learned trial judge was in error when he preferred the depositions at paragraphs 16, 17, 18 and 19 of the Respondents’ Counter Affidavit, regardless of the depositions in paragraphs 5 and 6 of the Applicants’ Reply to the respondents’ counter affidavit, aforementioned. His Lordship, ought to have taken oral evidence from the deponents of the respective affidavits to resolve the persisting conflict as to whether or not the applicants/appellants were arrested along with the MT REDEEMER Vessel on 28th August, 2015 by the respondents who allegedly held them in custody, firstly at the respondents’ Beecroft before they were returned to the vessel. And that the applicants/appellants were so held by the respondents for a period of over nine (9) months, without being charged with any offence, in a Court of law.
My Lords, in the circumstances of this matter, I am of the considered and firm opinion that there was no just and fair trial of the applicants/appellants’ application at the Court below. I am satisfied that this is an appropriate case for us to order a retrial of the applicants/appellants’ application for the enforcement of the alleged breach of their fundamental rights, by the respondents.
Therefore, the appeal is allowed. The judgment, rendered by R. I. B. Adebiyi, J., in re – Suit No: LD/3062MFHR/2016 at the Lagos State High Court, holden at Lagos, on 13th June, 2016, is hereby set aside.
The case is remitted to the Chief Judge of the Lagos State High Court, for it to be re- assigned to another Judge of that Court for a trial de novo.
Each side to bear own costs.
TIJJANI ABUBAKAR, J.C.A.: I read the leading Judgment in this appeal prepared and rendered by my learned brother Tom Shaibu Yakubu, JCA; I also agree that Appellants appeal is meritorious and therefore deserves to be and is hereby allowed by me.
I also endorse the order remitting the case to the Honourable Chief Judge of the High Court of Lagos State for a fresh trial.
Parties shall bear their respective costs.
TOBI EBIOWEI, J.C.A.: The law on conflicting affidavit evidence is clear and settled. When a Court is so confronted with conflicting affidavit evidence, what the Court is required to do is to call oral evidence as the Court cannot pick and choose which of the affidavit evidence to believe. In Arjay Ltd. & Ors vs. A. M. S. Ltd (2003) 2- 3SC; the Supreme Court per Onu JSC held:
In the case of Mr. Mike Momah vs. Vab Petroleum Inc (2000)4 NWLR (pt 654) 534 this Court stated the applicable principle of law regarding conflicting affidavit evidence as follows: “where a matter is being tried on affidavit evidence and the Court is confronted with conflicting or contradicting evidence relied by the parties on a material issue before the Court, the Court cannot resolve such conflict by evaluating the conflicting evidence in order to achieve the resolution of the conflict, Falobi vs. Falobi (1976) 9-10 SC.”
The exception to the rule is, where there are documents annexed to any of the affidavit or in the substantive case that resolves such conflict there will be no need to call oral evidence, See; Chairman National Population Commission vs. Chairman, Ikere Local Government & Ors (2001)13 NWLR (pt. 731) 540; Kehinde vs. Okparaonu (2013) LPELR – 21926 (CA).
The need to call oral evidence in the Case became obvious when the Appellant are emphatic that they were arrested. This was in paragraphs 6 and 7 of the affidavit in support. The Respondent in their paragraphs 16, 17, 18 and 19 of the counter affidavit denied arresting the Appellants but admitted arresting the vessel. The Appellants are not the same as the vessel. The Appellants are human beings whose fundamental right can be infringed. The vessel is an object that has no right that can be infringed. There is therefore difference between the alleged breach of the right of the Appellants by arresting them and the arrest of the vessel. This made it necessary for the lower Court to have called oral evidence. The lower Court did not call oral evidence or state where the exceptions to call Oral evidence exist.
For the above reason and the fuller reasons contained in the lead judgment just delivered by my learned brother, Tom Shaibu Yakubu, JCA which I had the priviledge of reading in draft, I also allow the appeal and abide by the consequential order made by my learned brother.
Appearances:
L. A. La-Kadiri, Esq.For Appellant(s)
Mallam J.A. Adamu (DD) F.M.JFor Respondent(s)
