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AKORTSAHA v. IGP & ORS (2022)

AKORTSAHA v. IGP & ORS

(2022)LCN/16161(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/MK/55/2021

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

BARR BEMVA AKORTSAHA APPELANT(S)

And

1. INSPECTOR GENERAL OF POLICE 2. THE COMMISSIONER OF POLICE BENUE STATE POLICE COMMAND 3. DSP. KAYODE AWE 4. VICTORIA ELAIGWU 5. EDOH UCHI RESPONDENT(S)

 

RATIO

THE DUTY OF THE POLICE UNDER THE POLICE ACT

Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) recognizes one Police Force for Nigeria and the said Police are given a duty under Section 4 of the Police Act to prevent and detect crime, apprehend offenders, preserve law and order, protect life and property and enforce all laws and regulations with which they are directly charged, it is an important statutory duty which they owe to the generality of Nigerian and all other persons lawfully living within Nigeria. It follows that in their duty to detect crime, allegations committed by any person should normally be investigated. PER HASSAN, J.C.A.

THE CONNOTATION OF A CASTIGATION OF A DECISION ON THE GROUND THAT A JUDGEMENT IS AGAINST THE WEIGHT OF EVIDENCE

A castigation of a decision on the ground that a judgment is against the weight of evidence connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the Court either wrongly accepted or that the interference it drew or conclusion reached based on the accepted evidence is unjustifiable. It equally connotes that when the evidence adduced by the complaining party is weighted against the one given by the respondent, the judgment given to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight, the trial Court is enjoined by law to consider whether the evidence is relevant, admissible, credible or more probable than that given by the other party. Where a trial Court failed to discharge that duty, it would be said that there had been a miscarriage of his primary duty and the law places this Court in a position with the lower Court in appraisal of documentary evidence. See AIYEJUNI AND COMPANY (NIGERIA) LIMITED & ANOR V. CHIEF R. A. AKINJAGUNLA & ANOR (2020) LPELR-51199 (CA) Page 15. PER HASSAN, J.C.A.

THE POSITION OF LAW ON PROOF OF ELECTRONICALLY GENERATED EVIDENCE BY ORAL EVIDENCE

Section 84 of the  Evidence Act 2011. Section 84 (1) & (2) of the Evidence Act provide for proof of electronically generated evidence by oral evidence and Section 84 (4) of the Act provides for proof of same by filling a certificate. The oral evidence or certificate must identify the document or statement, describing the manner of its production, stating the specifications of the device used in the production of the document and show authentication by a person occupying a responsible position in relation to the operation of the relevant device or management of the relevant device. On this See also DICKSON V. SYLVA & ORS (2016) LPELR-41257 (SC). Where photographs are taken with a digital camera or produced from a digital camera as in the instant case, it becomes a computer generated document by virtue of Section 84 (5) (c) of the Evidence Act, 2011. See YOHANNA DAVOU V. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND (2019) LPELR-47034 (CA). PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court Makurdi Division delivered by Hon. Justice M.O. Olajuwon on 11th January, 2021. The Appellant dissatisfied with the judgment of the learned trial Judge filed Notice of Appeal on 4th day of February, 2021, the notice was amended and filed on 25th March, 2021 and deemed properly filed and served on 20th January, 2022.

The brief facts of the case according to the Appellant is that on the 29th day of February, 2020, at about 7.45 pm, he left his house along 11th Avenue, off Inikpi Street, High Level Makurdi to go and purchase some important needs of the House with his Honda Car. While he parked beside Pauline Maka day care, High level to answer a call from his younger brother who was undergoing studies in Rome, Italy and wanted to know about the funeral arrangement of his aunty Mama Ruth Liangee Nguzan, the 3rd – 5th Respondent who claimed that they were on Patrol came unannounced and harassed, assaulted, arrested and seized his car and detained him at the B. Division Police Station before his colleagues led by the erstwhile NBA Makurdi Branch Chairman and his Vice Chairman as well as others who came and bailed him out.

At the time of his arrest, the Appellant was allegedly tortured and forcefully thrown in the Police Patrol van after he sought to know his offence.

The Appellant instituted this suit before the lower Court against the Respondents for enforcement of his fundamental rights and sought some reliefs. See pages 1-39 of the record.

The case was contested on affidavit evidence by both parties. The learned trial Judge delivered judgment on the 11th of January, 2021 and held inter alia at page 116 of the record that the Applicant has not made out a case to be entitled to the reliefs sought and dismissed the suit. Aggrieved by the decision the Appellant instituted this appeal.

The Appellant brief of argument was filed on 25th of March, 2021 wherein he formulated three issues for determination as follows:
1. Whether the Appellant did not prove his case on the balance of probabilities as expected in civil suits to enable him entitled for the reliefs sought? Distilled from grounds 1, 2, 4, 5 & 6.
2. Whether or not the decision of the lower Court was supported by the weight of evidence in the case. Distilled from grounds 7, 8 & 9.
3. Whether the learned trial Judge of the Court below was right to have discountenanced the Appellant submission that there is no valid counter-affidavit before it when Respondent’s deponent SGT Manasseh Vanger failed to comply with Section 115(3) (4) of the Evidence Act 2011 (as amended). Distilled from grounds 3.

Learned Counsel for the Respondent filed his brief of argument on the 18th August, 2021. He identify the same issues for determination in this appeal with that of the Appellant.

ISSUE ONE:
APPELLANT’S COUNSEL SUBMISSION
Arguing issue one, learned counsel for the Appellant submitted that the Appellant was arrested, tortured, detained and his vehicle seized for no offence which he has committed. He referred to paragraphs 14-24 pages 14 & 15 of the records. This evidence according to him was corroborated by the Respondents in their counter-affidavit in paragraphs 4q, r, s, t, u pages 50-51 of the records that Appellants has filed the case with the aim of frustrating the Respondents from further investigation and possible arraignment. He argued that this is a clear indication that the Respondents is willing to harass the Appellant for no offence and the lower Court ought to have taken note of this as he is entitled to personal liberty. He relied on the provisions of Sections 45 and 46 of the 1999 Constitution (as amended) and the case of Oluwatimitehin v. Kehinde (Supra) page 34.

It was submitted that there was no offence or crime that the Appellant has committed nor alleged to be seen making an attempt to commit and the Court was urge not to protect the Respondents who have framed up two different version of alleged offences of assault against the Divisional Police Officer (DPO) and the other bordering on kidnapping and even going ahead to place a badge of stained image of suspected kidnapper on the Appellant whose clients have deserted him on this strong and unverifiable allegations. He referred to pages 53 & 57 of the records.

He maintained that the conduct of the Respondent has seriously damaged the reputation of the Applicant as he suffered humiliation and loss of clients who have abandoned him. He submitted that the Appellant was treated like a criminal from the time of his arrest and detention by the Respondent as confirmed at paragraph 4t of the counter-affidavit at page 51 of the records.

He submitted further that there is nothing showing that the Respondent received a distressed call and the Court also observed this but went ahead to believe their story. He referred to lines page 109 lines 16-20 of the records. Reliance was placed in Section 138 of the Evidence Act and the cases of EFCC v. Reinl (2020) 9 NWLR (Pt. 1730) 489 at 520-521 and Oluwatimitehin v. Kehinde (Supra).

He contended that the Appellant has proved his case as expected under the law. He relied on the case of Haruna v Modibo (2004) 16 NWLR (Pt.487) page 503 and submitted further that the Appellant introduced himself as a private legal practitioner from the law firm of Mbafan Ekpendu & Co., and the Respondents were duty bound to find out if it is true or not. He referred to pages 12-13 and 55 of the records.

According to counsel, the Appellant cooperated with the Respondents by complying with their directives and nothing incriminating was found with him.

It is the position of counsel that the Appellant had proven his case on the preponderance of evidence to be entitled to the reliefs sought. He submitted that it is not in dispute that the Appellant was arrested and detained and his vehicle confiscated. He referred to paragraphs 15 of the Appellant’s affidavit in support at page 13 and paragraphs 2 & 4 at page 20 of the records as well as page 51 Exhibit NP ’’A’’ and paragraphs 4q, r, s, t, of the Respondents counter-affidavit at page 51 of the records.

According to counsel, it is not in dispute that the Applicant is a private legal practitioner who was arrested while receiving a call from his younger brother undergoing studies at about 7:45 pm within the area where he resides and his arrest was not as a result of any call tracking. He referred to page 53 and 55 of the record where it was clearly made known to the Respondents that the Applicant is a lawyer and only packed his car. He referred to paragraphs 6 & 7 page 12 of the record. He maintained that it is not in doubt that there was neither curfew nor restriction of movement and there was no report regarding that someone’s Honda Car with same model as that of the Appellant was snatched.

It was submitted that the 3rd – 5th Respondents vide paragraph 4 (m)-(z) of their counter-affidavit at pages 50-52 of the record did not show before the lower Court that the Appellant was traced through tracking or was caught with someone said to have been kidnapped. He referred to pages 50, 51 and 52 of the records. He stated that the Appellant has also attached a letter which he wrote to the 1st Respondent and copied same to the 2nd Respondent as well as the picture showing the injury he sustained on the left hand which corroborated Exhibit NP ’’B’’ attached by the Respondents. He referred to paragraphs 19 and 24 of the affidavit in support of the Appellant application at pages 12-22 of the records.

He argued that it is clear that while Exhibit NP ’’A’’ of the Respondents shows that the Appellant was arrested for being a suspected kidnapper, Exhibit NP ’’C’’ showed that Appellant assaulted the Divisional Police Office (DPO) of B Division who in this case is the 3rd Respondent. He referred to page 57 of the record. He submitted further that where the lower Court would have carefully looked at this conflicting case of the Respondents and that of the Appellant who proved his case and evaluated it. He said the Court neglected this fact, closed it eyes to the truth of the case and went ahead to hold that Appellant has failed to proof his case. He referred to page 116 lines 1-4 of the records. He contended that the Appellant also submitted the authority in the case of NSCDC v. Oko (2020) 10 NWLR (Pt. 1732) Page 288 at 319-320. He stated that the trial Court in the course of delivering judgment did not consider such authority and only chooses the authorities submitted by the Respondents to make use of it. He relied on the case of Sani v. Lere (2010) All FWLR (Pt. 545) page 335 at 355.

It was further submitted that where the lower Court erred in its failure to properly evaluate the evidence before it or wrongly evaluated the evidence, this Court is entitled to evaluate same and which if done as prayed, the weight of the evidence will show that the appellant had proved his case on the balance of probability as required in civil matters. He relied on the cases of Ogundepo v. Olumesan (2011) 18 NWLR (Pt. 1278) 54 SC and Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217 SC.

He urged the Court to invoke the Court’s powers under Section 15 of the Court of Appeal Act to correct the wrong.

RESPONDENT’S COUNSEL SUBMISSION
In answer to issue one, learned counsel for the Respondent submitted that the Appellant woefully failed to prove any breach of his fundamental rights against the Respondents on the balance of probability as expected in civil suits to enable him entitled for the reliefs sought. He submitted further that the Appellant has not satisfied the requirement of the laws and falls within its ambit to be entitled to the reliefs sought. He relied on the provisions of Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules 2009.

He contended that it is clear from the affidavit evidence of both the Applicant and the Respondents that the rights of the Applicant to personal liberty, dignity of his human person and freedom of movement have not been infringed and will not continue to be breach by the Respondents.

It is the position of counsel that the counter-affidavit and the Exhibits (NPA-NPC) particularly Exhibit NPC wherein the Applicant was granted bail within 24 hours. He urged the Court to dismiss this appeal.

He maintained that the powers of the Respondents in arresting the Applicant for the purpose of investigation and detection of crime upon an allegation of the commission of a criminal offence is provided in Sections 214, 215, 216 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 4 of the Police Act LFN 2004; Section 10 of the Criminal Procedure Act 2004; Section 26 of the Criminal Procedure Act 2004. He also relied on the cases of Ikpe & Anor v. Mr Effiong (IPO) Nigeria Police & Ors (2014) LPELR-23036 (CA).

He contended that once criminal allegations are made against a citizen, either through a complaint made to the Police or by intelligence gathering, the police have a constitutional and a statutory duty to investigate the allegations. He relied on the case of Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40.

It was submitted that the actions of the Respondents were based on a distress call received by the Respondents that one Chief Paul Igwe was kidnapped at the very spot where the Applicant was arrested and upon failure of the Applicant to identify himself or produce his vehicle particulars as demanded by the 3rd Respondent which discloses sufficient and reasonable grounds of the commission of crime necessitating police investigation, failure of which will be tantamount to abdicating its constitutional responsibility. He referred to page 108-116 of the records.

He maintained the Appellant having not challenged the findings of the lower Court as to reasonability of the criminal allegation against him cannot also complain of the legal actions of the Respondents which at all times were done within their legal duties. He referred to pages 112-113 of the records and relied on the cases of Okanu v. Imo State Commissioner of Police (2001) 1 CHR P.407; Igbo & Ors v. Durueke & Ors (2014) LPELR-22816 (CA); Hassan & Ors v. EFCC & Ors (2013) LPELR-225959 (CA) and AG Anambra State v. Chief Chris Uba (2005) 15 NWLR (Pt. 947) 44. He urged the Court to resolve this issue in favour of the Respondents and dismiss the appeal.

ISSUE TWO:
APPELLANT’S COUNSEL SUBMISSION
On issue two, learned counsel for the Appellant submitted that the judgment of the Court below was not supported by the weight of evidence on the fact that the trial Court did not properly evaluate the evidence of the Appellant and Respondents.

It was submitted further that the Appellant has supported his case with a 31 paragraphs affidavit and 8 paragraphs further affidavit to substantiate then fact that his fundamental human rights was breach. He stated that the said affidavit was attached with Exhibit A and B. He submitted that Exhibit A corroborated Respondent Exhibit NP ’’B’’ which clearly shows that the Appellant was injured while Exhibit B shows that the Appellant served a letter on the 1st, 2nd and 3rd Respondent but the Court placed so much reliance on same for the determination of case by holding that there is no evidence to show that the Appellant served Exhibit B.

He argued that the holding of the Court that there is no proof that the petition was received by any of the parties the applicant said he sent the petition to, no proof of acknowledgment of receipt and further ask a question as to how do we know that the petition was sent out as stated by the Applicant? He submitted further that the lower Court still went ahead to hold that as things stand, therefore, there is no evidence to substantiate the applicant’s allegation of the infringement of his right to human dignity by the Respondents aside the deposition in his affidavit which deposition was vehemently denied by the Respondents in their counter-affidavit is an error of law as the Court did not consider the requirement for admissibility of document which is provided under Section 83 of the Evidence Act 2011.

It was further submitted that the Respondents have not raised any issue in their counter-affidavit touching on Exhibit B which if raised the further affidavit of the Appellant would have carried exhibit of service. He stated that the Court left the issue canvassed and relied so much on what was not an issue before the Court despite understanding that Counsel for the Respondents was playing a hide and seek game. Reliance was placed on the following authorities Awuse v. Odili (2005) All FWLR (Pt.261) page 248 at 316 and Adebayo v. Shogo (2005) All FWLR (Pt. 253) Page 739.

It was further submitted that the Appellant at the Court below relied on the preliminary objection and the counter-affidavit filed which is at pages 40-62 of the records and on that impression and only raised this issue on the day of hearing. He referred to pages 75-80 of the records.

According to Counsel, the Court below went ahead to hold that Exhibit A is not admissible because there is no certificate of compliance attached to it in line with Section 84 of the Evidence Act. He contended that the two exhibits attached by the Appellant form part of the affidavit in support of the application. He relied on the cases of ….

He maintained that in Ilorin East Local Govt. v. Alasinrin (2012) All FWLR (Pt.645) 226 at 230; Badejo v. Fed. Min. of Education (1996) 8 NWLR (Pt. 464) page 15 at 42, the criteria used by the learned trial Judge of the Court below was at variance with the criteria for admissibility of document in affidavit evidence which form part of the affidavit. Reliance was placed on the cases of Ilyasu Suberu v. State (2010) 8 NWLR Page 584 at 604 and Ali v. Ugwu (2012) All FWLR page 1078 at 1109.

He submitted that the decision of the lower Court was not supported by the weight of evidence.

RESPONDENT’S COUNSEL SUBMISSION
In reply to issue two, learned counsel for the Respondents submitted that on the date in question the Respondent got a distress call that one Chief Paul Igwe was kidnapped at the very spot where the Applicant was arrested. He referred to Exhibits NPA, NPB and NPC respectively. He submitted further that whether or not the distress call in respect of the kidnap was on the date in question. He stated that the fact as established is that there was a reported kidnap at the area where the Applicant was receiving a call and based on the report, the police parades the area constantly.

He maintained that by the provisions of Section 4 of the Police Act the Respondents were duty bound to parade not only the area in issue but also other areas in the state in order to prevent further kidnap or commission of any other offence to apprehend anyone reasonably suspected to be an offender in order to preserve law and order and to protect lives and properties of the people.

It was submitted that the learned trial Judge after evaluating the evidence of the Applicant and the Respondent was right to have held that the onus of proving that the Applicant identified himself, as a lawyer was on the Applicant as in our jurisprudence, it is the person who asserts that has the onus to prove same. He relied on the case of Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411 and Sections 131 (1), 132 and 133 (1) of the Evidence Act 2011.

He contended that the learned trial Judge was right to have discountenance Exhibit A in support of the Applicant’s application which are photographs which fall within the classification of electronically generated evidence within the realm of Section 84 of the Evidence Act by failure on the part of the Applicant to accompany it with a certificate of compliance. He relied on the cases of Dickson v. Sylva & Ors (2016) LPELR-41257 (SC) and Davou v. COP Plateau State Command (2019) LPELR-47034.

It was submitted that the provision of the said section was not complied with by the Applicant in the case before the trial Court. He stated that no certificate or oral evidence of compliance was presented by the Applicant. According to him, this automatically renders the photographs Exhibit A inadmissible in evidence. He urged the Court to so hold.

He argued that the trial Court was also right to discountenance Exhibit B in support of the Applicant’s application. He contended that Exhibit B is a purported petition written to the Inspector General of Police, the 1st Respondent on what happened and copied the 2nd and 3rd Respondents but nothing was done in respect of the petition. He submitted that there is no proof that the purported petition was received by any of the parties the Applicant said he sent the petition to. He stated that there is no proof of acknowledgment of receipt. He submitted that the said Exhibit B is an after thought and prepared for the purpose of the Applicant’s suit before the trial Court. He referred the Court to Section 83 (3) of the Evidence Act.

He urged us in line with the above cited authorities and submissions to resolve this issue in favour of the Respondents and dismiss this appeal.

ISSUE THREE:
APPELLANT’S COUNSEL SUBMISSION
On issue three, learned Counsel for the Applicant submitted that the entire counter-affidavit of the Respondent in the Court below against the Applicant’s application is incompetent in law contrary to the holding of the trial Court, on the grounds that Sgt. Vanger Manasseh the IPO who was not at the scene of the incidents and has failed to state his source of information, has no competence to depose to the counter-affidavit. 

According to him, this constitutes a serious defect that cannot be cured. He submitted further that the failure of the deponent to state his source of information having not been present at the time of the incident renders the entire counter-affidavit incompetent.

He stated that the event in question took place beside Pauline Maka day care, behind Makurdi International Nursery and Primary School, High Level, Makurdi between the 3rd – 5th Respondents at about 7:45 pm and Sgt Vanger Manasseh was not at the scene of the incident and did not state his source of information in compliance with Section 115 (3) and (4) of the Evidence Act 2011.

He maintained that Sgt Vanger Manasseh was not the IPO who investigated the case involving the Appellant. He referred to Exhibit NP ‘’A’’ at page 55-56 of the record and Exhibit NP ’’C’’ at page 57 of the record. He urged us to compare the signatures on Exhibit NP ‘’A’’, NP ‘’B’’ & NP ‘’C’’ at pages 43 & 52 with pages 54, 55, & 57 as contained in the records which has no single name of the deponent.

It was further submitted that any decision or ruling based on defective affidavit must be set aside. According to him, the counter-affidavit in support of the notice of preliminary objection and the main counter-affidavit are unsupportable in law and cannot stand. He stated that the effect of non-compliance with Section 115 (4) of the Evidence Act means that the entire counter-affidavit is defective in substance and cannot be relied upon.

It is the position of learned counsel that failure to state the source of information is fatal and the refusal of the Court below to discountenance the entire counter-affidavit and the notice of preliminary objection on the ground that the said deponent stated that he was part of the investigating team alone does not make him a competent witness. He relied on the case of Ifaramoye v. State (2017) 4 SCM page 1 at 25. He urged the Court to allow the appeal and enter judgment in favour of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION
In answer to issue three, learned counsel for the Respondent submitted that the Respondents have satisfied the requirement of the law as stipulated in Section 115 of the Evidence Act 2011 and as such the affidavit evidence of the deponent Sgt Manasseh Vanger one of the investigating Police Officers cannot amount to hearsay. He said that the deponent stated in the counter-affidavit that he was one of the Investigating Police Officers who investigated this case and by virtue of that he was familiar with the facts of this case. That he also narrated the outcome of his investigation. He submitted that what he discovered in the course of his duty cannot amount to hearsay as was held by the Courts in several cases. He relied on the cases of Lekan Olaoye v. The State (2018) LPELR-43601 (SC); Ibrahim Kamila v. The State (2018) 8 NWLR (Pt.1621) 252 at 271.

He urged us to resolve this issue in favour of the Respondents given the arguments and submissions canvassed above and that the appeal be dismissed and we should affirm the judgment of the trial Court.

RESOLUTION
In the determination of this appeal, I will adopt the three issues formulated by the Appellant taking into consideration that the Respondents also adopted the same issues in his brief.

ISSUE ONE:
Whether the Appellant did not proof his case on the balance of probability as expected in civil suits to enable him entitled to the reliefs sought.

Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) recognizes one Police Force for Nigeria and the said Police are given a duty under Section 4 of the Police Act to prevent and detect crime, apprehend offenders, preserve law and order, protect life and property and enforce all laws and regulations with which they are directly charged, it is an important statutory duty which they owe to the generality of Nigerian and all other persons lawfully living within Nigeria. It follows that in their duty to detect crime, allegations committed by any person should normally be investigated.

The central issue is that the Appellant claim that he was arrested, tortured, detained and his vehicle was seized for no offence committed. The Respondent on the other hand stated that on the date in question, they received a distress call that one Chief Paul Igwe was kidnapped at the very spot where the Appellant was arrested upon failure of the Appellant to identify himself or produce his vehicle particulars as demanded by the 3rd Respondent.

It is not in dispute that the Appellant was arrested by the Respondents, it is within the statutory powers of the Respondent to arrest an alleged offender for purpose of investigation but their powers of detention is limited to constitutional period of 24 hours otherwise they would be liable to pay compensation. 

By the submission of the parties, the Appellant was released on bail the same day he was arrested and as rightly pointed out by the learned trial Judge at page 110 of the records that the Respondents were duty bound to parade not only the area in issue, but also other areas in the State in order to prevent further kidnap or commission of any other offence, to apprehend anyone reasonably suspected to be an offender, in order to preserve law and order and to protect lives and properties of the people. 

It was therefore not unlawful for the Respondents in this case to be at the area in issue, where the Applicant was found, which was an area where there was a reported kidnap. The Respondents could not also have been going beyond their duty by asking the Applicant or anybody for that matter, questions as to what he was doing at that place and at that time.

In the instant case, it has not been shown that the Appellant was detained beyond the 24 hours constitutional period, he was detained for about 3 hours before he was released on bail. His detention was within the constitutionally prescribed period as such his right to personal liberty was not violated by the Respondents. Thus issue one is resolved against the Appellant.

ISSUE TWO:
Whether or not the decision of the lower Court was supported by the weight of evidence in the case.

A castigation of a decision on the ground that a judgment is against the weight of evidence connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the Court either wrongly accepted or that the interference it drew or conclusion reached based on the accepted evidence is unjustifiable. It equally connotes that when the evidence adduced by the complaining party is weighted against the one given by the respondent, the judgment given to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight, the trial Court is enjoined by law to consider whether the evidence is relevant, admissible, credible or more probable than that given by the other party. Where a trial Court failed to discharge that duty, it would be said that there had been a miscarriage of his primary duty and the law places this Court in a position with the lower Court in appraisal of documentary evidence. See AIYEJUNI AND COMPANY (NIGERIA) LIMITED & ANOR V. CHIEF R. A. AKINJAGUNLA & ANOR (2020) LPELR-51199 (CA) Page 15.

In the instant case, the Appellant in Exhibit NP ‘’B’’ his statement to the police said he sustained injury on his left hand as a result of the beating and kicking from the Respondents. See paragraph 19 of his affidavit contained in page 14 of the records.

As rightly pointed by the learned trial Judge at page 114 of the record that Exhibit A of the Applicant are photographs which fall within the classification of electronically generated evidence within the realm of Section 84 of the  Evidence Act 2011. Section 84 (1) & (2) of the Evidence Act provide for proof of electronically generated evidence by oral evidence and Section 84 (4) of the Act provides for proof of same by filling a certificate. The oral evidence or certificate must identify the document or statement, describing the manner of its production, stating the specifications of the device used in the production of the document and show authentication by a person occupying a responsible position in relation to the operation of the relevant device or management of the relevant device. On this See also DICKSON V. SYLVA & ORS (2016) LPELR-41257 (SC). Where photographs are taken with a digital camera or produced from a digital camera as in the instant case, it becomes a computer generated document by virtue of Section 84 (5) (c) of the Evidence Act, 2011. See YOHANNA DAVOU V. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND (2019) LPELR-47034 (CA). I agree with the learned trial Judge that the provisions of Section 84 of the Evidence Act 2011 was not complied with by the Applicant (now Appellant) in this suit. No certificate or oral evidence of compliance was presented by the Applicant. This renders the photographs inadmissible in evidence. Furthermore, how did the Applicant even get the pictures? Where did he receive the treatment, who treated the alleged injury? So many questions left unanswered.

From the Record of Appeal, the Appellant has not successfully placed sufficient materials to prove the allegation of torture and inhumane treatment allegedly meted out to him by the Respondent to warrant this Court interfering with the Judgment of the learned trial Judge.

The cases of ILORIN EAST LOCAL GOVERNMENT V. ALASINRIN (Supra), BADEJO V. FEDERAL MINISTRY OF EDUCATION (Supra) and ILYASU SUBERU V. STATE (Supra) relied upon by the Appellant were not decided based on admissibility of computer generated evidence. Thus issue two is hereby resolved against the Appellant.

ISSUE THREE
Whether the learned trial Judge was right to have discountenanced the Appellant submission that there is no valid counter-affidavit before it when respondents deponent Sgt Manasseh Vanger failed to comply with Section 115 (3) (4) of the Evidence Act 2011. Section 115 (3) of the Evidence Act provides:
‘’When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.’’
(4) ‘’When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the informant.’’
The intendment of the legislature on Section 115 of the Evidence Act 2011 is to ensure that facts adduced before the Court by affidavit evidence are cogent, verifiable and completely divorced from hearsay evidence which is inadmissible in evidence.

The issue here is would the affidavit evidence of Sgt. Vanger Manasseh amounts to hearsay evidence and offends Section 115 of the Evidence Act?

The Sergeant stated in the counter-affidavit that he was one of the Investigating Police Officers who investigated this case and by virtue that, he was familiar with the facts of this case as he stated in the counter-affidavit. He narrated the outcome of his investigation, and what he discovered in the course of his duty. This in my view and as rightly identified by the learned trial Judge would not amount to hearsay evidence. See page 108 of the records.

In LEKAN OLAOYE V. THE STATE (2018) LPELR-43601 (SC) Per Peter-Odili, JSC at pages 42-43 paragraphs D-A Stated:
‘’It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey it is direct evidence. See Obot v. State (2014) LPELR-23130 (CA).’’

In the light of the above, issue three is resolve against the Appellant.

Having resolved the three issues against the Appellant, it means that this appeal is lacking in merit and is hereby dismissed.

The judgment of the lower Court, Justice M. O. OLAJUWON delivered on 11th day of January, 2021 in suit no. FHC/MKD/CS/3S/2020 is HEREBY AFFIRMED.
No order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading before now the draft judgment just delivered by my learned brother, Hon. Justice Muslim Sule Hassan, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his lead judgment.

I shall adopt all his reasonings as mine in dismissing the Appellant’s appeal and affirming the judgment of the Lower Court by Justice. M.O. Olajuwon delivered on 11th day of January, 2021 in Suit No. FHC/MKD/38/2020.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother HON. MUSLIM SULE HASSAN, JCA. He has exhaustively addressed the issues in contention. I am in full agreement with the reasoning and conclusions reached therein that the appeal lacks merit and ought to be dismissed.

I shall nevertheless make few comments by way of Contribution. By Sections 35 and 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), fundamental rights matters are placed on a high pedestal than ordinary civil matters in which for damage (s) resulting from proven violation of Appellants right by the Respondent, damages in form of compensation and apology would follow. A community reading of Sections 35 (6) and 46 (2) of the Constitution will give effect to the principle of ubi jus ibi remedium.
But that can only be so if the violation or detention is adjudged wrongful or unlawful in the first place, that is there is no foundation to base the arrest and/or detention of the Applicant. See OKONKWO V. OGBOGU (1996) 5 NWLR (PT. 449) 420, ISENENALUMBE V. JOYCE AMADI (2001) CHR 458 AND NEMI vs. AG LAGOS STATE (1996) 6 NWLR (PT 452).
Where there is an evidence of arrest and detention, as in this case, for the enforcement of fundamental human rights application, it is for the applicant to show that the arrest and detention were unlawful.

It is not in doubt that the appellant was arrested and detained by the respondents in their custody, it is equally not in contention that the appellant was released immediately, possibly after being interrogated by the Respondent in line with the constitutional provisions of Section 35 (3) and 4. What seems to be in contention here is the alleged inhuman and derogatory treatment meted on the Appellant.

In a bid to establish the culpability of the Respondents, the appellant tendered Exhibit ‘A’ which was rejected by the trial Court on valid grounds of failure to comply with the provision of Section 84 (2) a-d, of the Evidence Act, 2021 The documents sought to be tendered were photographs, electronic generated documents, the appellant failed to lay the foundation and even neglected totally to produce the necessary certificate as to how he acquired the said exhibits, from which computer and whether at the time of acquiring the said exhibits the computer was working regularly. Thereby resulting to the expected consequence of, having the exhibits rejected in line with the apex Court authority in DICKSON V. SYLVA & ORS (2016) LPELR- 41257 (SC).

The intent and purpose of Section 84 supra, is to provide adequate answers to the possible questions that could be asked as to how, where, when and under what condition the exhibits were procured being documents that are processed by a machine, an object other than a human being but which can be manipulated by man.

It appears to me that the appellant in this matter is a legal practitioner whom supposedly would have been more diligent in handling his personal matter and to have his own generated evidence being rejected on this ground sends a message that is not so pleasant.

I must again reiterate that, being a legal practitioner is not a bar from allowing the police and even assisting them in carrying out their constitutional mandate, especially in this security challenging times. Simple identification and tendering of vehicle particulars is not too much a task to comply with when demanded by the police.

This Court will not hesitate to declare any wrongful action of the police null and void if it is established and discovered that there had been an improper use of its statutory powers to investigate and prevent crime. But this Court being a Court of justice cannot be moved to limit the constitutional powers of the law enforcement agency saddled with prevention and detection of crime, especially where the applicant fails to prove that the police acted in excess of its constitutional power.

On the whole, this appeal is completely devoid of any merit and I have no hesitation in dismissing it. The judgment of the lower Court delivered by HON. JUSTICE M.O. OLAJUWON on the 11th day of January, 2021 in suit no. FHC/MKD/CS/38/2020 is hereby affirmed.

Appearances:

Bemva Akor Tsaha, Esq. For Appellant(s)

O.Y. Dennis, Esq. For Respondent(s)