ASUQUO v. COMMISSIONER FOR WOMEN AFFAIRS & SOCIAL WELFARE & ANOR (2021)

ASUQUO v. COMMISSIONER FOR WOMEN AFFAIRS & SOCIAL WELFARE & ANOR

(2021)LCN/15150(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/C/88/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MARY EMMANUEL ASUQUO (Suing By Her Next Friend Hon. Friday Sunday Nsoh) APPELANT(S)

And

1. HONOURABLE COMMISSIONER FOR WOMEN AFFAIRS & SOCIAL WELFARE 2. ATTORNEY GENERAL, AKWA IBOM STATE RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING BASIS FOR GRANTING DECLARATORY RELIEFS

It is the law that declaratory reliefs are not granted as a matter of cause or on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah v. S.P.D.C. (Nig) Ltd (1993) LPELR – 864 SC and Oguanuhu v. Chiegboka (2013) 2 SCNJ 693 at 767. PER JAMES SHEHU ABIRIYI, J.C.A.

WHETHER THE COURT HAS A DUTY TO CONSIDER WHETHER OR NOT AN UNCHALLENGED EVIDENCE IS SUFFICIENT TO ESTABLISH THE CLAIMS MADE BY THE PARTIES BEFORE IT CAN RELY UPON IT

It is the law that even if the evidence in a case goes one direction in that it is not challenged, the trial Court is still expected to examine whether or not the unchallenged evidence is sufficient to establish the claims made by the parties in whose favour the unchallenged evidence is given. See Marchem v. M. E. Kent (2005) SCNJ 235 at 243. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Akwa Ibom State sitting in the Eket Judicial Division delivered on 12th February, 2018.

In the High Court (the Court below), the Appellant was the Applicant while the Respondents were the Respondents.

The Appellant by motion on notice brought pursuant to Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 prayed for:
(1) A declaration that her continuous detention from 13th February, 2017 by the Respondents in their Correctional Centre (Remand Home) was unconstitutional, illegal, null and void.
(2) An order that the Respondents release the Appellant forthwith.
(3) N15 Million exemplary damages and costs of the action.

The facts of the case as can be made out from the affidavit evidence in summary are as follows:
The Appellant was arrested for being in possession of an alleged stolen phone and subsequently charged with three others before the Magistrates Court. She was remanded at the Remand Home at Uyo because at the age of sixteen (16) years she was a juvenile.

The charge on which she stood trial was later struck out. The complaint before the Court below was that the Appellant was not released despite release warrants served on the 1st Respondent.

The Court below considered the affidavit evidence before it and address of learned counsel for the Appellant and dismissed the application for the enforcement of the Appellant’s fundamental rights.

Nearly two years after the dismissal of the application, this Court granted extension of time and leave to the Appellant to appeal on 7th November, 2018 against the ruling of the Court below.

On 21st November, 2018, the Appellant filed a notice of appeal. The notice of appeal contains three grounds of appeal. From the three grounds of appeal, the appellant presented the following three issues for determination in an Appellant’s brief filed on 17th April, 2019:
i. Whether the trial Court was right in holding that the lawful authority of the Respondents to detain and withhold the Appellant was not extinguished upon MEK/160C/2016 (EXHIBIT A) being struck out and the Appellant discharged?
ii. Whether the Court was right in failing to place reliance on

the unchallenged and uncontroverted affidavit evidence of the Appellant in the Suit for the enforcement of her fundamental rights.
iii. Whether the trial Court was right in holding that the detention of the Appellant by the Respondents was lawful after the charge upon which the Appellant was tried was struck out and the Appellant discharged?

The Respondents adopted the issues submitted by the Appellant for determination.

On issue 1, learned counsel for the Appellant submitted that the charge (Exhibit A) upon which the Appellant stood trial having been struck out the refusal to release the Appellant from custody was unlawful and unconstitutional. It was submitted that the further steps taken by the Appellant’s next friend to cause the release shows the bad faith of the 1st Respondent.

It was submitted that the legal authority to remand the Appellant by the Respondents was extinguished and terminated on 13th February, 2017 when the charge against her was struck out. Therefore the detention and remand of the Appellant from 13th February, 2017 to 20th February, 2018 was a violation of the fundamental right to personal liberty of the Appellant.

On issue 2, learned counsel for the Appellant submitted that the Court below misapplied the law when it failed to rely on the uncontroverted affidavit evidence of the Appellant and consequently dismissing the fundamental right application of the Appellant. It was submitted that a party who fails to file a counter affidavit in opposition to affidavit evidence must be taken to have admitted the depositions in the affidavit. The Court was referred to Itsueli v. SEC (2012) NWLR (pt. 1284) 329 at 363, Nagogo v. CPC (2012) 14 NWLR (pt. 1321) 51 at 537, Atakpa v. Ebetor (2015) 3 NWLR 549 at 574, Baba v. N.C.A.T.C. (1991) 5 NWLR (pt. 192) 388, Adebiyi v. Umar (2012) 9 NWLR (pt. 1305) 279, Ogunleye v. Aina (2013) All FWLR (pt. 682) 1684 and Zain (Nig) Ltd v. Ilorin (2013) All FWLR (pt. 681) 1518.

It was submitted that the Court below was wrong in not relying on the uncontradicted evidence of the Appellant.

On issue 3, learned counsel for the Appellant contended that after the charge against the Appellant was struck out, there was no lawful basis upon which the Respondent should have been held on remand for over a year. That it was illegal for

the Respondents to detain the Appellant for one year and eight days after the case against her had been struck out. It was submitted that the detention amounted to an infringement of the fundamental right to liberty of the Appellant.

Alternatively, the Court was urged to invoke its powers under Section 16 of the Court of Appeal Act 2016 to assume the jurisdiction of the lower Court to appraise the affidavit evidence. The Court was referred to Iroegbu v. Mpama (2010) All FWLR (pt.549) 1116 at 1125, Ezechukwu v. Onwuka (2016) All FWLR (pt. 824) 148, Faleye v. Dada (2016) All FWLR (pt. 845) and Otu v. Bassey (2016) All FWLR (pt. 840) 1233.

It was submitted that the appellate Court may evaluate evidence where evaluation does not involve credibility of witnesses.

On issue 1, learned counsel for the Respondents submitted that the Court below was right to hold that the lawful authority of the Respondent was not extinguished upon Charge No. MEK/160C/2018 being struck out.

It was submitted that the evidence in the case reveals that Charge No. MEK/160C/2016 upon being withdrawn was only struck out and substituted with Charge Nos. MEK/28C/2017 and

MEK/29C/2017. The Court was referred to page 23 of the record of appeal containing the order of the Chief Magistrate Court.

Learned counsel for the Respondents pointed out that the Respondents were not parties to the trial at the Magistrates Court.

It was submitted that the Appellant was arrested and ordered to be remanded in a Correctional Home which is within the confines of the law. Therefore, the remand was lawful until otherwise ordered by the Court.

Exhibits C and D which Appellant claimed to have served the Respondents are not orders of Court, it was contended and that the alleged order was not received by any person known to the 1st Respondent. That the receiver had no official designation, no surname or where it was so received. That 23rd November, 2017 written on the document is not 13th February, 2017 as contested by the Appellant. That the undisclosed person is not a staff of any of the Respondents. That service of documents requires receipt stamp, date and designation of the receiving officer. This was not the position in this case.

It was submitted that the magistrate did not make an order discharging the Appellant after

striking out Charge No. MEK/160C/2016 and no such order was served on the 1st Respondent as there is no proof of service of such an order. The 1st and 2nd Respondents, it was contended, were not served with any order to release the Appellant. Therefore, the Respondents did not refuse to release the Appellant. No order of release was served on the Respondents.

The prosecutor, it was contended, did not apply to withdraw the charge against the Appellant but substituted it with Charge Nos. MEK/28C/2017 and MEK/29C/2017.

Still on the service of the order of Court, learned counsel for the Respondents argued that there was no affidavit of service in proof of the alleged service of the order of Court.

On issue 2, learned counsel for the Respondents submitted that Courts are enjoined to still evaluate the affidavit evidence of the applicant when there is no counter affidavit filed by the opposing party in order to ascertain the veracity of the facts alleged in the affidavit. The Court was referred to Mashingil & Ors. v. Chief Akun & Ors. (2013) LPELR – 21922, Anyaebosi v. R. I. Briscoe (Nig) Ltd (1987) 6 SCNJ 9, Audu & Anor v. Ahmed

(1990) 5 NWLR (pt. 150) 287, Okoye v. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt.1110) 335 and Ahmed v. C. B. N. (2013) 11 NWLR (pt.1365) 357. It was submitted that it is the duty of the trial Court to evaluate unchallenged evidence and be satisfied that it is credible and sufficient to sustain the claim. That the trial Court must examine the supporting affidavit to see whether it truly represents the position of the matters averred.

It was submitted that the decision of the Court below was based on the evaluation of the evidence before the Court.

On issue 3, learned counsel for the Respondents again submitted that the Appellant was lawfully remanded in a Correctional Home and that the charge upon which she was tried was only struck out and substituted with two other charges.

It was submitted that the Appellant did not provide the record of proceedings of the Magistrate Court in the Charge Nos. MEK/160C/2016, MEK/28C/2017 or MEK/29C./2017 but rather wanted the Court to speculate as to what happened in the Magistrate Court.

The Respondents, it was again submitted, did not arrest the Appellant. They were not the complainants in the

case that led to the remand of the Appellant at the Respondents’ Correctional Home. That, it was the Court that ordered the remand of the Appellant in the Respondents’ Correctional Home.

It was submitted that the release warrant on page 24 of the record is a mutilated production warrant with nothing on the face of it to convince the Court below that it was a release warrant.

It was submitted that the Appellant failed to submit the records of proceedings of the Magistrate Court in Charge Nos. MEK/160C/2016, MEK/28C/2017 and MEK/29C/2017 at their peril. It was submitted that the record of proceedings of any Court are correct and truly represent what happens in the matter before the Court.

It was submitted that the Appellant did not submit the records because she knew that they would represent a true and correct position of the Appellant being accused in Charge No. MEK/160C/2016 and MEK/29C/2017.

The Appellant’s reply brief filed on 31/8/2020 but deemed duly filed and served on 19/1/21 was not a response to new issues arising from the Respondents’ brief of argument but a re-argument of the Appellant’s case.

This is contrary to Order 19 Rule 5 (1) of the Rules of this Court. I will therefore discountenance the reply brief.

The main relief sought by the Appellant was for a declaration that her detention was unconstitutional, illegal, null and void. The other claims depended on the main relief succeeding. It is the law that declaratory reliefs are not granted as a matter of cause or on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. See Anyanru v. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah v. S.P.D.C. (Nig) Ltd (1993) LPELR – 864 SC and Oguanuhu v. Chiegboka (2013) 2 SCNJ 693 at 767. In its ruling, the Court below found thus:
Taking the applicant’s evidence and the exhibits into consideration, what is the fundamental right of the applicant that has been violated. Is it that an arrest of a girl of 16 years for alleged stealing of telephone hand set is a violation of the fundamental right of such a girl? Or could it be that the Magistrate who ordered the remand of the applicant in the State Correctional Center has violated her fundamental right?
It seems to me that the

counsel to the applicant is a complete stranger to the Fundamental Human Right (enforcement) procedure rules, 2009.
By Section 35(1)(a) of the Constitution of the Federal Republic of Nigeria, “every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in execution of the sentence or order of a Court in respect of a criminal offence of which he has been found guilty or
(b) By reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him by law”.
The applicant is said to be 16 years. By that age, she is subject to the child Justice Administration of Akwa Ibom State as provided for in the Child Rights Law of Akwa Ibom State 2008.
Under the said law, where a child is taken before a Court on a charge of having committed a criminal offence and the Court does not release the child on bail for certain reasons, the Court shall remand the child to the State accommodation.
Where a child is remanded to the State accommodation, it shall be lawful for any person acting on behalf of the designated State to retain the child.

See Section 219 (1) and (3) of the Child Rights law.
It seems to me that the detention of the applicant in the correctional centre having been made pursuant to the Order of Magistrate cannot tantamount to a breach of fundamental right of the applicant. There is nothing before me to suggest that the Magistrate who ordered the applicant to be remanded in the correctional centre of the State has made a counter order which the respondents have refused to obey.

It is not difficult to see from the ruling of the Court below that the Appellant was properly dealt with according to law. She was arrested for being in possession of a phone suspected to be stolen and charged before the Magistrate Court. That Court ordered her to be remanded in a Correctional Home since she was a juvenile. Her complaint in the Court below was that the 1st Respondent refused to release her from detention when Charge No. MEK/160C/2016 was struck out. From the bundle of exhibits annexed to the affidavit in support of the application, no release warrant was issued by the Magistrate for the release of the appellant from custody. Exhibit D annexed to the affidavit is not

such order. Exhibit D is an incomplete form addressed to the sheriff of Magistrate’s Court. It has been tampered with, to read release warrant. Exhibit C cannot be a release warrant either. It is an enrolled order of the Magistrate Court striking out Charge No. MEK/160C/2016 and substituting it with two new charges MEK/28C/2017 and MEK/29C/2017. The Appellant annexed Charge MEK/160C/2016 and Charge No. MEK/28C/2016 but withheld Charge No. MEK/29C/2017. The mere striking out of Charge No. MEK/160C/2017 did not mean that the Appellant was let off the hook. If the Appellant was not in the substituted charge No. MEK/28C/2017, she could have been in Charge No. MEK/29C/2017 which the Appellant withheld from the Court below. There is no evidence that the Appellant was not on Charge No. MEK/29C/2017 which has been withheld. The presumption is that if charge No. MEK/29C/2017 was exhibited, it would have been unfavourable to the Appellant. As learned counsel for the Respondents rightly pointed out, there was no order of the Magistrate discharging the Appellant. Exhibit C cannot be such order. Exhibit C was a discharge of all the accused persons on charge

No. MEK/160C/2016 only which was substituted with Charge Nos. MEK/28C/2017 and MEK/29C/2017. There is no evidence from the bundle of exhibits annexed to the affidavit in support of the application that the charge against the Appellant was withdrawn by the prosecution. Substitution of the charge as shown in Exhibit C is not evidence that the charge against the Appellant was withdrawn.

Although Exhibits C and D are not release orders, there is no evidence that the Respondents were served the documents. The endorsement purporting to be endorsement of service was not by a named officer of any of the Respondents. There is no full name of the officer or his designation, on whom Exhibits C and D were purportedly served.

It is clear from the foregoing that the finding of the Court below reproduced above is unimpeachable.

Issue 1 is therefore resolve against the Appellant and in favour of the Respondents.

favour the unchallenged evidence is given. See Marchem v. M. E. Kent (2005) SCNJ 235 at 243. The Court below in the instant matter was entitled to consider the affidavit evidence before it even in the absence of a counter affidavit in order to determine whether or not to grant the application. I do not agree with learned counsel for the Appellant that in the absence of a counter affidavit, the Court below ought to have relied on the unchallenged affidavit evidence even if it was unreliable to grant the application.

As I pointed out earlier since the Applicant was seeking for a declaratory relief anyway, the burden was on the Appellant to establish by credible evidence that she was entitled to the grant of her application for enforcement of her fundamental rights. It was even immaterial if the Respondents admitted breaching the Appellant’s fundamental rights. The burden was still on the Appellant to establish on the affidavit evidence presented in Court by her that she was entitled to the declaration that her fundamental right was violated by the Respondents. See Matanmi & Ors. V. Dada & Anor (2013) LPELR – 19929SC.

Issue 2 is also resolved against the Appellant and in favour of the Respondents.

Learned counsel for the Appellant contended in issue 3 that charge No. MEK/160C/2016 having been struck out, there was no basis for the continued remand of the Appellant in the Correctional Home.

Again, I repeat that the initial charge against the Appellant having been struck out and substituted with two new charges, the Appellant ought to have shown that the exercise entitled her to a release from custody. This she did not do. As learned counsel for the Respondents rightly pointed out, the Appellant chose to leave the Court in the dark as to what happened in the Magistrate Court by not exhibiting the proceedings of that Court. The Court cannot speculate as to what happened there. The mere striking out of the initial charge and substituting it with other charges points rather to a subsisting case against the Appellant rather than an entitlement to a release from custody. As I pointed out earlier while the Appellant exhibited Charge No. MEK/28C/2017, she did not exhibit MEK/29C/2017 and the record of proceedings of the Magistrate. The refusal to put all the cards on the table by the

Appellant amounts to withholding evidence contrary to Section 167(d) of the Evidence Act.

The Appellant did not establish the basis if any upon which she should have been released from custody.

Issue 3 is resolved against the Appellant and in favour of the Respondent. All three issues having been resolved against the Appellant and in favour of the Respondents, the appeal is hereby dismissed for lacking in merit.
Parties shall bear their respective costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother J. S. Abiriyi, JCA.

My learned brother has painstakingly dealt with the three (3) issues nominated in the appeal. I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal lacks merit and ought to be dismissed.
Accordingly, I also dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, James S. Abiriyi, JCA.

I agree entirely with the reasoning and conclusion that where the evidence in a case goes to one direction and

same is unchallenged, the trial Court is still expected to examine whether or not the unchallenged evidence is sufficient to establish the claims made by party in whose favour the unchallenged evidence is given.
I also dismiss the unmeritorious appeal.

Appearances:

Christian Tom, Esq. For Appellant(s)

Nkoyo Ekong, Esq. Assistant Director, Ministry of Justice, Akwa Ibom State For Respondent(s)