C.O.P BENUE STATE COMMAND & ORS v. DOOLOR (2020)

C.O.P BENUE STATE COMMAND & ORS v. DOOLOR

(2020)LCN/14492(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/182/2017

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

COMMISSIONER OF POLICE BENUE STATE COMMAND & 3 ORS APPELANT(S)

And

DONALD IORSUE DOOLOR RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY REQUIRES LEAVE OF COURT TO ARGUE A PRELIMINARY OBJECTION

I have already stated that during the hearing of the appeal, appellants’ counsel first adopted appellants’ brief of argument in urging the Court to dismiss the appeal and thereafter adopted his answer to the preliminary objection as set out in his reply brief. It was after appellants’ counsel had argued his appeal that respondent’s counsel argued his preliminary objection. Where respondent gives notice of preliminary objection to an appeal and incorporates argument thereon in his brief of argument, he is required to seek leave of Court to argue the objection before appellant’s counsel adopts his brief of argument. Where he fails to do so and allows appellant’s counsel to adopt his brief of argument first, it will be taken as an abandonment of the preliminary objection. See SCC (Nig) Ltd V Elemadu (2005) 7 NWLR (Pt. 923) 28, 72, Onochie V Odogwu (2006) 6 NWLR (Pt. 975) 65, 79, Ben V State (2006) 142 LRCN 2545, 2557, Agbareh V Mimra (2008) 2 NWLR (Pt. 1071) 378, 425, Ohakosim V COP, Imo State (2009) 13 NWLR (Pt. 1164) 229, 243, Abba V Shell Petroleum Development Company (Nig) Ltd (2013) 11 NWLR (Pt. 1364) 86, 101, Shuaibu V Muazu (2014) 8 NWLR (Pt. 1409) 217, 311 – 312 and Allanah V Kpolokwu (2016) 6 NWLR (Pt. 1507) 1, 25 – 26. PER EKANEM, J.C.A.

WHETHER OR NOT COMPUTER GENERATED DOCUMENTS CAN ONLY BE ADMITTED IN EVIDENCE UPON COMPLIANCE WITH THE REQUIREMENTS OF SECTION 84 OF THE EVIDENCE ACT 2011

It has been established firmly that a computer – generated document can only be admitted in evidence upon compliance with the requirements of Section 84 of the Evidence Act, 2011. Thus a party that seeks to tender in evidence such a document must lead evidence to satisfy the requirements of Section 84 (2). See Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 534 and Omisore V Aregbesola (2015) NWLR (Pt. 1482).PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Makurdi (the lower Court) delivered on 7/2/2017 in suit No. FHC/MKD/CS/94/2015. In the judgment, the lower Court (coram: Hassan Dikko, J) granted the application of the respondent (as applicant) for the enforcement of his fundamental rights against the appellants (as respondents). The lower Court awarded the sum of N500,000:00 in favour of the respondent against the appellants for the breach of the respondent’s fundamental rights.

The facts of the case leading to this appeal may be summarised as follows: The respondent, a student of the Benue State University, Makurdi, was an ad – hoc staff of the Independent National Electoral Commission for the May 2015 general elections. After the elections, he was paid his allowance for his work. On his way back from the office of INEC after payment of the allowance, he was severely assaulted by the 3rd and 4th respondents who manned a police check point between Buruku and Yandev junction in Gboko Local Government (Benue State). The 3rd and 4th

respondents slapped him, kicked him on his sheens, (sic: shins) flogged him with a whip and used the butt of an AK 47 rifle to hit him on the head. Respondent, as a result, sustained injuries on his body and head which required stitching. He was arrested and taken to the police station in Buruku but was later on taken to two hospitals where he was treated. The case presented by the respondent stood uncontroverted as the learned Judge of the lower Court struck out all the paragraphs of the counter – affidavit of the 1st appellant for infraction of Section 115 of the Evidence Act, 2011.

Aggrieved by the decision of the lower Court, the appellants filed an appeal against the same by means of a notice of appeal containing three grounds of appeal.

Pursuant to the rules of this Court, the appellants filed a brief of argument on 19/7/2017 and a reply brief on 31/1/2019, which was deemed duly filed and served on 23/6/2020. Both briefs were settled by Dr Agada Elachi. The respondent filed his brief of argument on 23/5/2018 and the same was deemed duly filed and served on 23/6/2020. It was settled by S.M. Anongo, Esq. It must be mentioned that the

respondent also filed a notice of preliminary objection seeking to strike out or dismiss the appeal.

At the hearing of the appeal on 23/6/2020, Dr Agada Elachi for the appellants referred to and adopted the briefs of argument filed on appellants’ behalf in urging the Court to allow the appeal and set aside the judgment of the lower Court. He thereafter referred to the notice of preliminary objection and his reply brief in answer to the argument thereon. He urged the Court to discountenance the objection.

T. Menger, Esq. for the respondent referred to his preliminary objection and argument in respect thereof at pages 2 – 5 para. 3.2 – 3.16 of the respondent’s brief of argument. He adopted the same in urging the Court to strike out the appeal. He also adopted the arguments in respect of the appeal and urged the Court to dismiss the same.

In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:
“3.01.1 Whether the learned trial Judge could rely on computer generated evidence, which did not comply with Section 84 of the Evidence Act 2011. (Ground 1).

3.01.2 Whether in the light of the radical conflicts of the parties’ affidavits, the learned trial Court could proceed to resolve the case without calling oral evidence. (Ground 2).
3.01.3 Whether the learned trial Judge could abridge the period fixed by law within which a right of appeal could be exercised. (Ground 3)”.

Respondent’s counsel adopted the issues formulated by appellants’ counsel.

Before considering the appeal, I shall treat the preliminary objection of the respondent. I have already stated that during the hearing of the appeal, appellants’ counsel first adopted appellants’ brief of argument in urging the Court to dismiss the appeal and thereafter adopted his answer to the preliminary objection as set out in his reply brief. It was after appellants’ counsel had argued his appeal that respondent’s counsel argued his preliminary objection. Where respondent gives notice of preliminary objection to an appeal and incorporates argument thereon in his brief of argument, he is required to seek leave of Court to argue the objection before appellant’s counsel adopts his brief of

argument. Where he fails to do so and allows appellant’s counsel to adopt his brief of argument first, it will be taken as an abandonment of the preliminary objection. See SCC (Nig) Ltd V Elemadu (2005) 7 NWLR (Pt. 923) 28, 72, Onochie V Odogwu (2006) 6 NWLR (Pt. 975) 65, 79, Ben V State (2006) 142 LRCN 2545, 2557, Agbareh V Mimra (2008) 2 NWLR (Pt. 1071) 378, 425, Ohakosim V COP, Imo State (2009) 13 NWLR (Pt. 1164) 229, 243, Abba V Shell Petroleum Development Company (Nig) Ltd (2013) 11 NWLR (Pt. 1364) 86, 101, Shuaibu V Muazu (2014) 8 NWLR (Pt. 1409) 217, 311 – 312 and Allanah V Kpolokwu (2016) 6 NWLR (Pt. 1507) 1, 25 – 26.
Since respondent’s counsel abandoned his preliminary objection, the fact that appellants’ counsel, after adopting appellants’ brief of argument, referred to and adopted his argument against the objection cannot serve to resurrect what had been abandoned and therefore in a manner of speaking dead. Again, the fact that respondent’s counsel subsequently argued the preliminary objection was nothing but “flogging a dead horse”. I therefore strike out the notice of preliminary objection

and the argument thereon for having been abandoned.

In any event, and in case I am wrong, I shall hereunder consider the preliminary objection. The preliminary objection is based on five grounds, to wit;
(i) that there is no evidence of payment of filing fees for the notice of appeal;
(ii) that there is no evidence that Agada Elachi, Esq. of Greenland Chambers applied for and obtained the fiat of the Attorney – General of the Federation to prosecute the appeal on behalf of the appellants;
(iii) that grounds 1 and 3 of the notice of appeal are not valid grounds;
(iv) that ground 1 raises a fresh point without leave to do so;
(v) that ground 3 is an attack on an obiter dictum of the lower court and therefore is incompetent.

In respect of 1 above, Order 12 Rule 1 of the Court of Appeal Rules, 2016 provides for payment of the fees prescribed in the Third Schedule in respect of the matters which they are respectively assigned. In the third schedule, the sum of N5,000:00 is prescribed for filing of notice of appeal against a final judgment or decision as in this instance. However Order 12 Rule 2 of the same rules provides in

part that:
“No fee shall be payable in respect of any matter where such fee would be payable by the Government of the Federal Republic of Nigeria or of a State or Local Government of (sic: or) any Government Department”.
The phrase “Department” is defined as;
“A division of a greater whole; a sub division” – Black’s Law Dictionary 8th Ed. P. 468.
The Nigeria Police Force is established by Section 214(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and is conferred with the duty of prevention and detection of crimes, apprehension of offenders, preservation of law and order, protection of life and property etc. See Section 4 of the Police Act, Cap. P. 19, Laws of the Federation of Nigeria, 2004. The Nigerian Police Force is therefore the division of the Government of the Federal Republic of Nigeria that is charged with the responsibility set out in Section 4 of the Police Act. Fees for filing processes of Court are to be paid by the parties. It follows therefore that in this instance where the appellants are office and officers of the Nigerian Police Force sued in

those capacities, the Nigerian Police Force would pay fees for filing notice of appeal or any other process of the Court. It is however exempted by Order 12 Rule 2 supra. This is why the notice of appeal at pages 56 – 58 of the record of appeal is marked “Official”.

Agada Elachi, Esq., a private legal practitioner, does not require the fiat of the Attorney – General of the Federation to represent the appellants since the Nigerian Police Force is a corporate entity which can sue and be sued either directly or its officers can be sued for their conduct in the course of the discharge of their official functions. Thus the Force can retain the services of a private counsel to represent it in Court. Once Agada Elachi, Esq., signed the notice of appeal and other processes as counsel for the appellants and announced his appearance as such, the Court must assume that he has the authority of his client for the conduct of the case. In Martins V FRN (2018) 13 NWLR (Pt. 1637) 523, 536, Eko, JSC, held that:
“Once a counsel appears in a case, either ex – facie the process filed or announces his appearance in open Court, the Court

assumes that he has the authority of his client for the conduct of the case”.
See also FRN V Adewunmi (2007) 10 NWLR (Pt. 1042) 399 and Shona-Jason Ltd V Omega Air Ltd (2006) 1 NWLR (Pt. 960) 1, 34.
Again, a Court lacks jurisdiction to look into whether or not a counsel has instruction or briefing of his client to appear in Court. See State V Mathew (2018) 9 NWLR (Pt. 1625) 399, 412. It is only the party that is being represented by counsel that can question the representation.
This ground of the preliminary objection is frivolous and I discountenance it.

The second ground is to the effect that ground 1 of the grounds of appeal raises a fresh point that was not canvassed before or considered by the lower Court and no leave was granted to raise it. Ground 1 of the grounds of appeal reads:
“3. GROUNDS OF APPEAL
1. The learned trial Judge erred in law by placing reliance on Exhibits ‘1A’, ‘1B’, ‘1C’ and ‘1D’ which reliance formed the fulcrum for the judgment of the Court whereas the said documents did not comply with Section 84 of the Evidence Act, 2011.

PARTICULARS OF ERROR
i. Exhibits ‘1A’, ‘1B’, ‘1C’ and ‘1D’ are all photographs from digital camera whose pictures are generated by an electronic process.
ii. That the exhibits are generated by an electronic process and are thus computer generated document.
iii. That a computer – generated evidence must comply with S. 84 of the Evidence Act, 2011 to be admissible.
iv. That Exhibits ‘1A’, ‘1B’, ‘1C’ and ‘1D’ did not comply with the provision of Section 84 of the Evidence Act, 2011”.

The ground is essentially a complaint about the admissibility of Exhibits 1A, 1B, 1C and 1D or a reliance of the lower Court on the same. A ground of appeal against wrongful admission of evidence or wrongful reliance on it in a final appeal is proper and arises from the judgment. It requires no leave of Court to raise it. See Ajayi V Attorney – General, Ogun State (2009) 7 NWLR (Pt. 1141) 443, 461 – 462 and Alabi V Alabi (2007) 9 NWLR (Pt. 1039) 297, 333.

The fact that there was no objection at the lower Court to the admissibility of document does not

preclude raising it at the appellate stage if the evidence was inadmissible under the law in the first place. See Minister of Lands, Western Nigeria V Ambrose Family (1969) All NLR 48, Abi v Central Bank of Nigeria (2012) 3 NWLR (Pt 1286) 529 and A.N. Mohammed Petroleum Ltd V Afriank (Nig) Plc (2006) 17 NWLR (Pt. 1007) 131, 158.
This ground of the objection is without substance and I discountenance it.

As regards the ground of the objection that ground 3 of the notice of appeal is invalid, I think there is force in the objection. Ground 3 of the grounds of appeal without its particulars states:
“The learned trial Judge erred in law and acted without jurisdiction by limiting the period for the exercise of the right of appeal to 30 days”.
The aspect of the decision of the lower Court that is the subject of the ground of appeal is at the tail end of the decision of the learned Judge of the lower Court after His lordship had found in respondent’s favour and awarded damages. His lordship then stated as follows:
“There is right of Appeal within 30 days from today”.
A ground of appeal must arise from the

judgment appealed against and must be an attack on a ratio decidendi of the judgment and not an obiter dictum. See MBN V Nwobodo (2005) 130 LRCN 2269, 2277, Oleksandr V Lonestar Drilling Co. Ltd (2015) 9 NWLR (Pt. 1464) 337, 362 and Okechukwu V INEC (2014) 17 NWLR (Pt. 1436) 255, 281 and Plastic Industries Ltd V Fagbola (2019) 14 NWLR (Pt 1691) 88, 113.
The phrase “ratio decidendi” is a latin phrase which means “the reason for deciding” and it refers to:
“The principle or rule of law on which a Court’s decision is based” – Black’s Law Dictionary 8th Ed. P. 1290.
The phrase “obiter dictum” is also a Latin expression which means “something said in passing” and it refers to:
“A judicial comment made while delivering a judicial opinion but one that is unnecessary to the decision in the case and therefore not precedential” – Black’s Law Dictionary Supra. 1102.
The comment by the learned Judge of the lower Court was an obiter dictum as it did not form the basis of his lordship’s decision but was, with due respect, an unnecessary

comment in regard to the decision. The ground of appeal raised against it amounted to an attack against an obiter dictum and is therefore incompetent.
Although I have already ruled that the preliminary objection had been abandoned, this Court is entitled to suo motu consider the viability or competence of a ground of appeal and rule thereon. In view of my position on ground 3 of the grounds of appeal, I hereby strike out ground 3 of the grounds of appeal and issue 3 which is framed from it.

I now turn my attention to the appeal. In determining the appeal, I shall be guided by issues 1 and 2 formulated by appellants’ counsel which were adopted by respondent’s counsel.

Issue 1 –
Whether [or not] the learned trial Judge could rely on computer – generated evidence which did not comply with Section 84 of the Evidence Act 2011.
Appellants’ counsel noted that the respondent annexed to his affidavit in support of his application exhibits 1A, 1B, 1C, and 1D to prove the injuries alleged to have been sustained by him. He stated that the pictures were not taken at the scene of the alleged assault and submitted that

the respondent having failed to reveal the source of the pictures, the same became inadmissible. Counsel then referred to Section 84(1) and (2) of the Evidence Act, 2011 and contended that there was no evidence to show that respondent complied with the conditions provided in Section 82(2). He stated that the respondent failed to state the type of camera that was used in taking the pictures or how they were developed, who took the photographs etc. He placed reliance on Omisore V Aregbesola (2015) NWLR (Pt. 1482) 205 and Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 577 – 578. He posited that the respondent failed to lay down a background for the admissibility of the photographs.

For the respondent, it was submitted by his counsel that there was substantial compliance with Section 84(2) of the Evidence Act, 2011, on the basis that the date on the pictures is the same date of the occurrence of the incident the subject of the matter. He noted that the appellants at the lower Court did not raise any objection to the admissibility of the documents and therefore waived the right to do so now.

In his reply, appellants’ counsel argued that imprint of

dates on the exhibits without laying proper foundation as required by law does not satisfy the conditions stipulated by law.

Exhibits 1A, 1B, 1C, and 1D attached to the affidavit of the respondent in support of his application to enforce his fundamental rights are pictures said to be images of the respondent showing his injuries as a result of the attack on him by the 3rd respondent. They are tersely referred to in paragraph 11 of the said affidavit.

The argument of appellants’ counsel about the place of the taking of the pictures and the source of the same does not fall within the scope of issue 1. I therefore discountenance it.

The contention of appellants’ counsel under this issue is predicated on the assumption, inter

alia, that the documents the subject of his query were tendered and admitted in evidence without compliance with Section 84(2) of the Evidence Act, 2011. This, in my view, is fallacious. The documents were attached to the respondent’s affidavit in support of his application for the enforcement of his fundamental rights. They were part of the affidavit and the idea of tendering them in evidence and their admission did not arise. A similar situation arose in Ojuya V Nzeogwu (1996) 1 NWLR (Pt. 427) 713. Ige, JCA responded as follows at page 722.
“It is my view that the learned trial Judge was wrong in holding that all the attached exhibits were inadmissible without making reference to each exhibit specifically. This being a case decided on affidavit evidence the attached exhibits are not formally tendered as such in evidence and the contents therein are not disputed hence they cannot be dismissed by a wave of the hand on mere technicality”.
In Jukok International Limited V Diamond Bank Plc (2016) 16 NWLR (Pt. 1507) 55, 110 Oredola, JCA, referred to the above dictum with approval. In Bature V Savannah Bank (Nig) Ltd (1998) 4 NWLR (Pt.

546) 438, 444, Ogebe, JCA, as he then was, dealt with the same question in the following manner:
“For the appellant’s counsel to argue that certain documents were admissible or inadmissible is completely irrelevant. I therefore find it unnecessary to go into the issue of admissibility of the documents being questioned. The documents were exhibited in the affidavit for judgment and the trial Court merely looked at them … They were not admitted in evidence formally”.
In the recent case of Ezechukwu V Onwuka (2016) 5 NWLR (Pt. 1506) 529, 562, Peter – Odili, JSC, held thus:
“However, it is also trite law that all documents attached to an affidavit …form part of the affidavit in question and it is not possible to raise objection to its admissibility in the affidavit of the respondent without running counter to Section 87 of the Evidence Act 1990”.
I am bound by the decisions set out above. Since the contention of appellants’ counsel is erected on a faulty premise, the contention must collapse.

In any event the decision of the learned trial Judge was not fundamentally

based on the documents. His lordship found as follows at page 53 of the record of appeal:
“I scrutinized the averments in support and found paragraphs 8, 9, 10, 11, 12, and 13 as evidence of torture meted on the Applicant by the 3rd and 4th Respondents, by slapping him on face, kicking with service boots and rifle butt, resulting to injuries, the evidence is further substantiated by Applicant’s photographs in exhibits “1A”, “1B” “1C” and “1D” depicting injuries sustained, there is also evidence of medical treatment in exhibits “2” and “3”.

It is clear from the foregoing that the trial Court found that the respondent was assaulted based on the deposition in paragraphs 8, 9, 10, 11, 12 and 13 of the affidavit of the respondent. The photographs the subject of the complaint by appellants served only to “further substantiate” the finding of the trial Court. Therefore without the photographs, the trial Court would still have arrived at the same finding.
On the whole, I resolve issue 1 against the appellant.

Issue 2 – Whether [or not] in the light of the radical conflicts of the parties’ affidavits, the learned trial Court could proceed to resolve the case without calling oral evidence.
Counsel for appellants referred to Section 116 of the Evidence Act, 2011 (as amended) and submitted that the trial Court erred when it proceeded to judgment while relying on the affidavit evidence of the respondent (as applicant) despite the irreconcilable conflicts in the affidavits. He placed reliance on Ejezie V Anuwu (2008) 12 NWLR (Pt. 1101) 446 among other cases. He referred to paragraphs 8, 9 and 10 of respondent’s affidavit and the second affidavit in support of the application of the respondent. It was his contention that they were contradictory and therefore the lower Court ought to have called for oral evidence or discountenanced the depositions therein. Counsel further stated that the 1st appellant denied the whole of the deposition of the respondent but that the learned trial Judge jumped into giving judgment against appellants without considering the testimony of the appellants, having erroneously struck out the 1st appellant’s counter – affidavit as a whole. It was his position

that the learned trial Judge ought to have struck out only the allegedly defective paragraphs of the (counter) affidavit assuming that there were defects therein. Counsel submitted that if this Court considers the counter – affidavit of the 1st appellant, it will realise that the conflict created by the depositions therein was sufficient to move the lower Court to hear oral evidence to resolve the same.

It was his submission that respondent failed to prove his allegation of assault and torture as exhibits 1A, 1B, 1C and 1D are inadmissible while exhibits 2 and 3 could not be relied upon as medical evidence of injury or torture. This, he stated, is because exhibit 2 was handwritten and unsigned while exhibit 3 has no identity of the maker, while the cash receipt is not evidence of injury or torture.

Counsel for the respondent contended that there are several exceptions to the rule that oral evidence must be used to resolve conflicting affidavit evidence. He stated that one of the exceptions is where the conflict is flimsy or on irrelevant issue. He stated that the facts in the affidavits and documents annexed reveal that there was no serious

conflict to warrant the calling of oral evidence to resolve the same. He noted that 1st appellant’s counter – affidavit was struck out by the lower Court and that there is no ground of appeal against that order. He posited that there was therefore no conflict of affidavit evidence of the parties.

Section 116 of the Evidence Act, 2011 (as amended) provides that:
“When there are before a Court, affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavits and such other witnesses as may be called by the parties”.
The foregoing provision is but a codification of the time – honoured general position of the law that where there is conflict of affidavit evidence of parties, oral evidence should be called to resolve the conflict. See Falobi V Falobi (1976) NMLR 169, Falola V Union Bank of Nigeria Plc (2005) 126 LRCN 911 and The Honda Place Ltd V Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The complaint of the appellants in this issue is two – fold, to wit;
(i) that the two affidavits filed by the respondent in support of his application to enforce his fundamental rights were irreconcilably in conflict; and
(ii) that there was conflict between the affidavits of the respondent and the 1st respondent, consequent upon which the lower Court should have called for oral evidence to resolve the conflict before proceeding to give judgment in respondent’s favour.
It is necessary to state that what the law says is that where affidavit evidence filed by opposite parties is in conflict in terms of crucial or material facts, oral evidence is to be called to resolve the conflict except there is documentary evidence that can be used to resolve the conflict. This position of the law does not apply where the conflict arises from the affidavit or affidavits filed by one party only. In such a case the need to call oral evidence to resolve the conflict does not arise. Rather the Court is enjoined, where there is no explanation, to reject the entire evidence of the party as it cannot pick and choose which of the conflicting versions to

follow. The rider is that the conflict must be crucial or material and not inconsequential. See Arjay Limited V Airline Management Support Limited (2003) 108 LRCN 1173, 1197, 1216, and Zakirai V Muhammad (2017) 17 NWLR (Pt. 1594) 181, 243. Since the alleged conflict, on one hand, arose from the affidavits filed by the respondent, the need to call oral evidence did not arise. The question then is, should the lower Court have rejected the evidence of the respondent on account of the said internal conflict? My answer is “No”. It is my view that the acclaimed conflict is not material. For conflict of affidavit evidence to receive the Court’s attention, the conflict must affect the live issues, it must be tangible, material and fundamental and not merely cosmetic or peripheral. See Ugbane V Hussain (2009) 5 NWLR (Pt. 1135) 488, 544 – 545.

In this instance, the fundamental or material issue was that the 3rd and 4th respondents breached the fundamental right of the respondent to the dignity of his person by brutally assaulting and torturing him. In his affidavit in support of his application, the respondent deposed as follow in paragraphs

6, 7, 8, 9, 10 and 11:
“6. That it was Buruku market day and the police at Buruku Divisional Police Command mounted a check point between Buruku and the junction of Yandev in Gboko Local Government.
7. That on reaching the checkpoint my Okada was stopped by the 4th Respondent who was the one manning the checkpoint.
8. That immediately the Okada man stopped the bike, the 4th Respondent rushed up to the Okada man and slapped him hard on the face, the action of the 4th Respondent was sudden and unexpected making me to exclaim in wonder “Haa! What is wrong?”.
9. The 4th Respondent on hearing my protest without justification slapped me also on my face and when I inquired to know why the 4th Respondent slapped me the 3rd Respondent who was standing up the road came to the scene shouting “who are you?” what do you think you are?.
10. That before I could reply the 3rd Respondent started kicking me with his boots on my sheens, using his whip to flog me and I fell into a cassava farm but the 3rd Respondent continue to attack me and finally use the butt on his riffle (AK47) to hit me on the head.
11. That as I

result of the beating and the attack on me by the 3rd Respondent with his riffle, I sustained severe injuries on my body and on my head which required stitching see Exhibits 1A,B,C, and D annexed hereto and blood began to rush there from and I began to feel and get dizzy”.

In the affidavit of Mercy Dega still in support of the application, it is deposed in paragraphs 5, 6 and 7 as follows:
“5. That I witnessed the beating meted on Mr. Donald Iorsue Dooior and the cyclist that conveyed him back to Yandev.
6. That the 2nd Respondent slapped the Applicant and when the Applicant demanded to know why he slapped him, the 3rd Respondent rushed to the scene and without asking what was wrong started to use his boots and whip on the Applicant to the extent of hitting the applicant with the butt of his gun on the head.
7. That I witnessed and saw the injury inflicted on the head of the Applicant by the 3rd Respondent who hit him with the butt of his gun and Applicant bled profusely from the wound sustained”.

The 2nd respondent (now the 2nd appellant) is the Divisional Police Officer who was not said to be at the scene. The

deponent of the second affidavit (Mercy Dega) in referring to the 2nd and 3rd respondents was obviously referring to the 3rd and 4th respondents, respectively. The mix up in their nomenclature by the said deponent is of no consequence. What is material is the fact of the assault. The discrepancy in the two affidavits is not therefore material or fundamental as to warrant the rejection of the evidence of the respondent.

The second arm of the contention of appellants’ counsel is that the depositions of the respondent were denied by the 1st appellant in his counter – affidavit and therefore oral evidence ought to have been called by the learned Judge of the lower Court to resolve the conflict. It is noteworthy that at page 54 of the record of appeal after considering the depositions in the 1st appellant’s counter – affidavit in the light of Section 115 of the Evidence Act, 2011 (as amended) the Learned Judge of the lower Court held thus:
“It is my view that failure of the counsel to comply with conditions under Section 115 of the Evidence Act is fatal and thereby rendered the evidence inadmissible, I so hold. Consequently,

all the paragraphs of the counter – affidavit by the 1st respondent are hereby struck out for lack of legitimacy under the law”.
I have scanned the grounds of appeal in the notice of appeal. There is no ground of appeal which attacks the above specific finding and order of the lower Court. The result is that they remain binding and conclusive between the parties. See Heritage Bank Limited V Bentworth Finance Nigeria Limited (2018) 9 NWLR (Pt. 1625) 420, 436 and Jibrin V Federal Republic of Nigeria (2020) 2 NWLR (Pt. 1714) 315, 341.
The effect of the foregoing is that there was no deposition in the counter – affidavit of the 1st appellant to controvert the facts deposed to in the affidavits in support of the respondent’s application to enforce his fundamental right. The law is that facts in the affidavit of a party which are not controverted by his adversary are deemed admitted and the lower Court rightly acted on them to give judgment in respondent’s favour. See Agbaje V Ibru Sea Food Ltd (1972) 5 SC 50, Uzodinma V Izunaso (2011) 7 NWLR (Pt. 1275) 30, 56 and Yar’Adua V Yandoma (2015) 4 NWLR (Pt. 1448) 123, 174.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The argument of appellant’s counsel as regards proof of the case by respondent as well as the admissibility of exhibits 1A, 1B, 1C, 1D, 2 and 3 does not fall within the scope of issue 2 and I therefore discountenance the same.
I therefore resolve issue 2 against the appellants.

Having resolved the two issues against the appellants, I come to the conclusion that the appeal has no merit. It falls and I accordingly dismiss it, and affirm the decision of the lower Court.
I assess the costs of thos appeal at N100,000:00 in faavour of the respondent against the appellants

ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother JOSEPH EYO EKANEM, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit and should be dismissed.
I adopt the judgment as mine and join my brother in dismissing the appeal. I abide by all consequential orders made, including that on costs.

ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph Ekanem, JCA, made available to me in

advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The resolution the issues arising for determination have been fully considered and resolved, and, I adopt same as mine.
I also dismiss this appeal and abide by the orders made in the lead Judgment, including the Order as to costs.

Appearances:

Dr Agada Elachi with Him, Akosu Terfa, Esq. For Appellant(s)

T, Menger, Esq. For Respondent(s)