CHIEF UWEM WILLIAMSON AKPAN v. NSIDIBE RUFUS SAM & ORS (2014)

CHIEF UWEM WILLIAMSON AKPAN v. NSIDIBE RUFUS SAM & ORS

(2014)LCN/6836(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of February, 2014

CA/C/260/2011

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

CHIEF UWEM WILLIAMSON AKPAN Appellant(s)

AND

1. NSIDIBE RUFUS SAM
(a.k.a. Akpan Udo Sam)
2. EMEMOBONG RUFUS SAM
3. NDIFREKE JOHN OKORIE
4. UKEME EMMANUEL ARCHIBONG
5. MICHAEL FRANK UDOALA Respondent(s)

RATIO

WHETHER OR NOT WHERE AVERMENTS IN AN AFFIDAVITS ARE IN CONFLICT, ORAL EVIDENCE OUGHT TO BE CALLED FOR THE PURPOSE OF RESOLVING SUCH CONFLICTS

In our humble view, it is difficult to brush aside this submission. The prescription, which was concreted from judicial decisions, but which now enjoys statutory imprimatur in section 116 of the Evidence Act, 2011, is that where averments in affidavits are in conflict, oral evidence ought to be called for the purpose of resolving such conflicts, one way or the other. Such oral evidence would be tested under cross examination in the usual adversarial procedure, Akinsete v. Akindutire (1966) 1 All NLR 147; Eboh and Ors v. Oki and Ors (1974) 1 SC 179, 189-190; Olu-Ibukun and Anor v. Olu-Ibukun (1974) 2 SC 41, 48; Uku and Ors v. Okumagba and Ors (1974) 3 SC 56, 64-65, cited in Falobi v. Falobi (1976) 10 NSCC 576; Nwosu v. I.S.E.S.A. (1990) 2 NWLR (Pt. 135) 688; Falola v. UBN Plc (2005) All FWLR (Pt. 257) 1435; The Honda Place Ltd. v. Globe Motors Ltd (2005) 14 NWLR (Pt. 945) 273.This would, considerably, aid the court in coming to a fair decision of the matter, F.S.B. International Bank Ltd v. Imano Nigeria Ltd (2000) FWLR (Pt. 19) 392, 408; Mark v. Eke (2004) All FWLR (Pt. 200) 1455, 1479. PER NWEZE, J.C.A.

WHETHER OR NOT THE COURT CAN RESORT TO SPECULATION AS AGAINST THE FACTUAL AVERMENTS IN THE AFFIDAVITS IN EVIDENCE OF PARTIES

As noted above, the parties did not join issues on the existence of any recognizance bond. Indeed, the respondents did not depose to their entering into any such bond before their alleged release on bail on July 23, 2008. Against this background, counsel for the appellant contended that “the court resorted to speculation and conjectured the existence of a bail recognizance which ought to have been produced by the Police, the first respondent at the trial, to establish the date of the respondents’ release.” We, entirely, agree with him. The lower court resorted to speculation as against the factual averments in the affidavits evidence of the parties.
This is impermissible. Speculation is forbidden in our adjudicatory process, Overseas Construction Co. (Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd and Anor (1985) 3 NWLR (Pt. 13) 407, 414; Bakare v. A.C.B. Ltd (1986) 5 SC 48, 51-52; Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) 746, 782; Seimograph v. Ogbeni (1976) 4 SC 101; The State v. Aigbangbe (1988) 3 NWLR (Pt. 84) 578; Fawehinmi v. NBA and Ors (No.1) (1989) 2 NWLR (Pt. 105) 494; (1989) 4 SCNJ 1; Adelanwa v. The State (1972) 10 SC 13, 19; Ihewuzi v. Ekeanya (1989) 1 NWLR (Pt. 96) 239, 248.

As under Nigerian law, so it is under English law, Barnet v. Cohen and Ors (1921) 2 K.B. 461. We have a duty to set aside the lower court’s speculative evidence Alli and Anor. v. Alesinloye and Ors (2002) 6 NWLR (Pt. 600) 177, 203; (2002) 4 SCNJ 264; ACB Plc v. Emostrade Ltd (2002) 8 NWLR (Pt. 770) 501, 517. PER NWEZE, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF CITIZENS TO REPORT CASES OF COMMISSION OF CRIME TO THE POLICE

Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.
The cases on this point are many, only one or two may be cited here Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegui (1961) All NLR 882; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635, 666; Gani Fawehinmi v. Col. Halilu Akilu & Ors (1987) 5 NWLR (Pt. 67) 797; A.G., Anambra State v. Chris Uba (2005) 33 WRN 199. PER NWEZE, J.C.A.

CHIMA CENTUS NWEZE, J.C.A.(Delivering the Leading Judgment): At the High Court of Akwa Ibom State, Ukanafun Judicial Division, the respondents in this appeal (as applicants) brought an application for the enforcement of their fundamental rights against the Commissioner of Police, Akwa Ibom State (as first respondent) and the present appellant (as second respondent). Their complaint was predicated on the claim that their fundamental rights were infringed, or likely to be infringed, by the arrest and detention of the second; third and fourth respondents; the likely arrest of the first respondent and the appellant’s alleged threat (in collaboration with the police) to kill the fifth respondent.

Issues were joined in the affidavit evidence of the parties. The court (hereinafter, simply, referred to as “the lower court”), in its ruling of October 26, 2009, pages 207 – 208 of the record, awarded the sum of N50,000.00 (Fifty Thousand Naira as damages) against the appellant herein. The lower court, also, made other orders against the appellant.
Aggrieved by the said orders and the ruling of the lower court, generally, the appellant appealed and concreted three issues for the determination of his appeal. We shall return to them anon. Before then, however, a factual background to this appeal would, perhaps, be appropriate here.

FACTUAL BACKGROUND

The appellant in this appeal had petitioned the Commissioner of Police, Akwa Ibom State. He complained that the first-fourth respondents were fond of stealing his palm fruits. They, also, allegedly, assaulted and inflicted grievous bodily harm on the appellant’s children. He urged the Police to investigate his complaint. They did. On July 20, 2008, some police men were detailed to invite the “suspects” for interrogation. The appellant’s children identified the second; third and fourth respondents to the Police as those who assaulted them and inflicted injuries on the appellant’s son named Edidiong Uwem Williamson. They were, consequently, taken to the Police Headquarters for Interrogation.

Although the first respondent was mentioned in the said petition, he was neither seen nor was he arrested. No complaint was made against the fifth respondent. Consequently, the Police did not invite him.

After due interrogation, the Police admitted the second; third and forth respondents on bail on Monday, July 21, 2008. They were requested to report to the Police with the first respondent at a later date for his own statement. The said first respondent did not honour the invitation of the Police. Rather, prior to the date scheduled for his visit to the Police, he took out the action culminating to this appeal. He joined the second – fifth respondents. His complaint was that since the appellant caused the Police to arrest and detain the second; third and fourth respondents from July 20, 2008 to July 23, 2008; intended to arrest him and to kill the fifth respondent, their fundamental rights had been breached.

As shown above, the lower court favoured the applicants (now respondents in this appeal) with monetary damages and other orders. The appellant’s three issues for the resolution of his appeal were framed thus:

(1) Whether given the facts and circumstances of the instant case, the trial court properly evaluated and resolved the conflicting depositions in the parties’ affidavits, and exonerating the respondents of the criminal allegations against them on the affidavit evidence, without calling oral evidence and without regard to (the) evidence of Police investigation, or affording the victims of the alleged assault, who were not parties to the suit, an opportunity to be heard?

(2) Whether the respondents, on the affidavit evidence, proved the infringement of their fundamental rights by the appellant to entitle them to judgment?

(3) Whether the decision and order of the trial court for the appellant only to pay damages to the second; third and fourth respondents is justified in law?

Somewhat, dramatically, the respondents, who neither cross appealed nor filed a Notice to contend that the ruling of the lower court be affirmed on other grounds, purported to “seek leave of this court to add two new issues for determination…”. We need not waste the precious time of the court on this awkward approach of the respondent. Suffice it to re-iterate the well-settled position that issues not covered by any of the ground or grounds of appeal which the appellant or cross appellant filed are invalid and must be discountenanced, Iwuoha v. NIPOST Ltd. [2003] 8 NWLR (Pt. 22) 308; Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Idika v. Erisi [1988] 2 NWLR (Pt. 78) 56.

The respondents’ said two issues cannot be pitch-forked into any of the appellant’s Grounds of appeal, pages 160-161 of the record. What is more, the said respondents neither cross appealed nor did they file any respondent’s Notice to contend. Not having taken either of these two procedural steps, they are not at liberty to frame their own issues outside the appellant’s Grounds of appeal, pages 160-161 of the record. Even then the said issues are not related to or covered by the said ground or grounds of appeal.

In our humble view, they can, at best, only adopt the appellant’s issues based on the ground of appeal or frame their own issue(s) based on or woven around the appellant’s grounds of appeal, Udeme v. Ugwu (1997) 3 NWLR (Pt. 491) 57; Udem v. Michelletti and Sons Ltd (1997) 8 NWLR (Pt. 872); A.G. Akwa Ibom State v. Essien (2004) 7 NWLR (Pt. 872) 288; Atanda v. Ajayi [1989] 3 NWLR (Pt. 111) 511; Nigeria Customs Service v. Bazuaye [2006] 3 NWLR (Pt. 967) 303, 321; Effiong v. Ebong [2006] 18 NWLR (Pt 1010) 109; Akinlagum v. Oshobaja (2006) 12 NWLR (Pt. 993) 60; Globe Fishing Ind Ltd v. Coker (1990) 7 NWLR (Pt. 162) 265; Anyafulu v. Agaze (2005) 5 NWLR (Pt. 923) 260; Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227, 243.

We shall, therefore, discountenance the said two issues formulated outside the Grounds of appeal on pages 160-161 of the record, Nfor v. Ashaka cement Co. Ltd (1994) 1 NWLR (Pt. 319) 222; Santory Co Ltd. v. B.O.N. Ltd. [2005] 8 NWLR (Pt. 925) 594; M. B. N. Plc. v. Nwobodo (2005) 14 NWLR (Pt. 945) 379; NITEL v. Tusboyele (2005) 3 NWLR (Pt. 912) 334.

ARGUMENTS ON THE THREE ISSUES FOR DETERMINATION

ISSUE ONE

APPELLANT’S CONTENTION

When this appeal came up for hearing on November 21, 2013, counsel for the appellant, Etim Okon, adopted the appellant’s brief of argument filed on January 13, 2012, but deemed, properly, filed on November 7, 2012. He urged the court to allow the appeal. In the said brief, it was pointed out that when the lower court was determining the application for the enforcement of the respondents’ fundamental rights, it adopted the first and second issues which the applicants brought for determination. They were framed thus:

(a) Whether the fundamental rights of the applicants had been infringed by the respondents?

(b) Whether the first; second; third and fourth respondents committed any offence to warrant the intervention of the officers of the first respondent?

He pointed out that the court, in its appraisal of the affidavit evidence, paragraph 3, page 193 of the record, noted that issues were joined on whether the applicants had committed any offence as to warrant any arrest by the police: an arrest prompted by the said petition, exhibit 3 to the Counter Affidavit of the police, the first respondent at the lower court. He explained that the second, third and fourth respondents were later identified to the police as those who assaulted the victims, notably, Edidiong Uwem Williamson and Ifiok Uwem Williamson. He cited page 194 of the record for the lower court’s evaluation of the evidence.

Counsel noted that, by coming to this conclusion, the lower court failed or refused to reason that the second, third and fourth respondents, as deposed in paragraph 11 of the first respondent’s Counter Affidavit and paragraph 16 of the appellant’s Counter Affidavit, were identified by the victims of the assault to the police as those who assaulted them. He, further, noted that the said court ventured to consider whether the first applicant/respondent committed the offence. He pointed out that exhibits “1” and “1A” were pictures of the appellant’s wounded child while exhibits “2” and “2A” were the police medical Report forms.

He observed that the court went further to evaluate the exhibits which it found to be full of irreconcilable self contradictions and, therefore, unreliable and believed the assertions of the first – fourth respondents, paragraph 4 of their said affidavit. He contended that the court failed to take cognizance of the fact that the issue, namely, whether an offence was committed or not was joined by the parties in their affidavit evidence. He maintained that the salient issue at this stage was whether, on the preponderance of the affidavit evidence, the applicants had established the infringement of their fundamental rights to be entitled to the ruling in their favour and not the criminal trial which the lower court embarked upon on the affidavit evidence.

He submitted that the court overlooked a very fundamental aspect of trial by affidavit evidence as the affidavits of parties were in conflict on a very important and crucial aspect of the dispute which gave vent to the appellant’s petition to the police. He, further, submitted that it was wrong for the lower court to attempt a resolution of the said exhibits “2” and “2A” without calling for the evidence of the Police who issued the forms and the Doctor who examined and treated the victims or even the evidence of the victims to assist the court in arriving at a fair and just decision.

He canvassed the firm view that the lower court was in gross error when, without calling for oral evidence, it went ahead to resolve the issues of criminal assault; wounding and stealing in the affidavits, which were irreconcilably in conflict with regard to the material issues of fact necessary for the determination of the issues in question. In his view, the error led to the court’s wrong conclusion that the respondents committed no offence and the unwarranted issuance of the order on the Police to cover the suspects from their culpable acts. He cited Olu Ibukun v. Ibukun (1974) 4 ECSLR 706,710; (1974) 2 SC 41, 47; Ebohon v A.G. Edo State (1997) 50 LRCN 1323; Ojengbede v. Esan Loja-Oke [1987] 1 NWLR (Pt. 63) 49. He urged the court to resolve this issue in favour of the appellant and against the respondents.

RESPONDENTS’ ARGUMENTS
On his part, counsel for the respondents, Ini Itong, adopted the respondents’ brief which was settled by Felix J. Udom and filed on November 27, 2012. He took the liberty of his response to the submissions on issue one to deal with the appellant’s issue three as well. Curiously, at page 2, paragraph 2.2. of the respondents’ brief, counsel, erroneously, observed that “the first issue for determination raised by the appellant is whether the fundamental rights of the applicants (now, respondents) had been infringed.”

This is incorrect. The appellant’s first issue for the determination of this appeal could be found on page 3, paragraph 3.01 of the brief filed, as already shown above on January 3, 2012, although deemed, properly, filed on November 7, 2012. Be that as it may!
On the premise of this erroneous assumption, he submitted that the appellant infringed on the fundamental rights of first, second, third and fourth respondents. He noted that the matter was, purely, civil and not criminal in nature, The Registered Trustees of the Apostolic Church v. Mrs. Emmanuel Olowoleni [1990] 6 NWLR (Pt. 150) 514. He referred the court to the claim in Suit No. 5/2008 contained in exhibit ‘A’ of the affidavit in support of the Motion Ex parte, page 9 of the record. He, also, referred the court to the judgment that was entered in the case on July 17, 2008, page 10 of the record.
He submitted that, by causing the Police officers to arrest and detain the second, third and fourth applicants from the 20th to the 23rd July, 2008, their fundamental rights were infringed. He maintained that, if they had committed any offence, they could have been charged to court, citing section 36 of 1999 constitution. In his view, their detention beyond twenty four hours was illegal.
He pointed out that, both the commissioner of police and the appellant had in their paragraphs 10 and 15 of their counter Affidavits, respectively, averred that the second, third and fourth applicants were arrested. He submitted that it was not difficult for the lower court to determine that the first, second, third and fourth respondents did not commit any offence to warrant the intervention of the officials of Commissioner of Police.

He noted, also, that it was also not difficult for the court to hold that the first respondent did not commit any criminal offence to warrant his search by the Police officers. He contended that having failed to react to the new issues that the first to fourth respondents raised in their further affidavit, the appellant had admitted the facts therein. He urged the court to resolve issues one and three in favour of the first, second, third and fourth respondents.

RESOLUTION OF THE ISSUE

In our humble view, what is distillable from the appellant’s woolly first issue is the narrow question of the propriety of the lower court’s resolution of the conflicting averments in the affidavits before it without calling oral evidence. Perhaps, a reference to the record of appeal would help to place this issue in its proper con.

After, meticulously, setting out the facts and certain averments in the affidavits of the parties, the lower court, at page 192 of the record, proceeded thus:

There is, however, a disagreement as to whether the applicants had committed any offence to warrant their (sic) arrest and detention of the second to fourth applicants as well as the threat to arrest the first applicant. While the applicants say they did not, the respondents say they did. What then was the offence allegedly committed by the applicants? The first respondent’s contention is that the first applicant, his children and some other men beat up three children of the second respondent and inflicted severe injuries on them. According to the first respondent, what the Police was investigating was not land matter but a case of assault, wounding and stealing, see, paras. 6, 7, 8, 11 and 21 of the first respondent’s counter Affidavit).

The court was not yet done. It turned to the second respondent:

On his part, the second respondent said he was not present during the incident. Rather, his elder brother was at home. According to him shortly after the District court had delivered the judgment on 17/7/08, he proceeded from the court to Aria – Aria market at Aba and did not return home until about 8p.m. of that day. He says the 2nd – 4th applicants were arrested at his instance for attacking his children with deadly weapons and causing them severe bodily injuries. (see, paras 11, 12, 13 and 14 of the 2nd respondent’s Counter Affidavit).

Page 193.

Having thus set out the averments, the court pointed out that it was clear:

..that the parties have joined issues on the very important issue as to whether the applicants had committed any offence and deserve to be arrested and/or detained. In order to resolve this issue, recourse must be had to the facts placed before the court..

It proceeded to examine those materials, pages 193 – 194 of the record.
It devoted pages 193 et seq to the examination of the maze of conflicting averments of the parties in their affidavits and counter affidavits and other documentary exhibits, example, exhibits 1 and 1A, pictures of the appellant’s wounded child; exhibits 2 and 2A, medical reports. It would appear that the court, in an attempt to wade through the said conflicting averments, lost sight of the principal question, namely, whether, on the balance, the applicants [now, respondents] were able to establish any infringement of their fundamental rights, as they claimed.
Indeed, it would appear that the court mistook the procedure before it for a criminal trial in which the present appellant and his children were required to prove the commission of the offences of assault; grievous bodily harm and stealing beyond reasonable doubt. For example, at page 197 of the record, the court resolved the question of the alleged assault and grievous bodily harm on the appellant’s children on the affidavit evidence and exhibits, particularly, the medical reports, which it described as “full of irreconcilable self contradictions…” Listen to this:

There is no doubt that the Police Medical Report Form is usually issued with all the relevant particulars and taken along with the victim to a Doctor. Upon treating the victim, the Doctor would make his report and return the form to the Police. It is not possible for the Doctor to write his report before the form is issued by the Police. This appears to be the case in the instant case. A close look at exhibits 2 and 2A shows that they were issued on 23/7/2008 and both of them were given the serial number 227 of that date. It is also apparent that the Doctor wrote this report on 18/7/08 after purportedly treating the ‘patient accordingly.’

In this case, the alleged offence was reported to the police on 18/7/08. The Doctor, allegedly, treated the purported victims and issued Medical Reports the same day. Those Medical Reports are shown to have been issued and given serial number on 23/7/08. Both of them were given the same serial number. Are all these practicable? I do not think they are. Rather I am of the same view that somebody somewhere is economical with the truth of the matter. To push the matter forward, the second respondent in his petition to the Police dated 18/7/08 had said that the alleged attack on his children had left two of them ‘critically ill’ at home. The question is whether those who were said to be at home critically ill are the persons he met, treated, discharged and issued Medical Reports on the same day, 18/7/08.

In the light of the foregoing it is difficult to agree with the respondents that the children of the second respondent were attacked and that they suffered any injuries. I do not believe the respondent on this score…

It was against this background that counsel for the appellant argued that the “trial court was, therefore, in gross error by resolving the issue of the criminal assault, wounding and stealing before it on affidavits, which were irreconcilably in conflict with regard to the material issues of fact necessary for the determination of the issue in question, without calling oral evidence. This error led to the erroneous conclusion of the court that the respondents committed no offence and the restraining order on the Police to cover the suspects from the culpable act,” (page 6, paragraph 4.18 of the appellant’s brief).

We must, quickly, add here that, though section 116 of the Evidence Act, 2011, has codified the prescriptions evolved by the above judicial decisions and others too numerous to be cited here, in this judgment, we shall not consider the said provisions. Rather, we prefer to limit ourselves to the above-cited judicial decisions which delineated the compass of the rule on the resolution of conflicts in affidavit evidence and the exceptions thereto. After all, the new Evidence Act had not come into being at the time the cause of action of arose, A-G Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Alao v. Akano (1988) 1 NWLR (Pt. 71) 431; Uwaifo v. A-G Bendel State (1982) 7 SC 124, (1983) 4 NCLR 1; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166, 201; Rossek v. ACB Ltd (1993) 8 NWLR (Pt. 312) 382, 474; Adah v. N.Y.S.C (2004) 13 NWLR (Pt. 891) 639, 648. In passing, we state that we can only venture our views on the interpretation of the ambit of section 116 of the Evidence Act, 2011 when the opportunity presents itself at some future date, see, however, the brilliant scholastic attempts at elucidating the nuances of the said section, J. Amadi, Contemporary Law of Evidence in Nigeria (Vol. 11) (Port Harcourt: Pearl Publishers, 2012) 1542 et seq; S.T. Hon, S.T. Hon’s Law of Evidence in Nigeria (Vol. 11) (Port Harcourt: Pearl Publishers, 2012) 1100 et seq.

In all, we agree with the appellant’s counsel that the lower court’s cavalier approach to the conflicting averments on the very crucial issues before it was less than satisfactory. In the circumstance, the decision, on this score, would not be allowed to stand, Falobi v. Falobi (supra); Nwosu v. I.S.E.S.A. (supra). We, therefore, resolve this issue in favour of the appellant.

ISSUE TWO

Whether the respondents, on the affidavit evidence, proved the infringement of their fundamental rights by the appellant to entitle them to judgment?

On this issue, counsel pointed out that the first, second and respondents in their affidavits in support of their application and address at the lower court contended that they were arrested on July 27, 2008 and released on bail on July 23, 2008. The appellant and the first respondent countered this assertion in their distinct counter affidavits. They denied the infringement of the applicants’ rights. They contended that the first-third respondents were, lawfully, invited on July 7, 2008, following the petition against them and were released immediately after their interrogation on July 21, 2008. They pointed out that July 20, 2008 was a Sunday.

Counsel observed that the lower court, confronted with the contradicting and conflicting dates of the release of the said respondents, failed to call oral evidence to resolve same. He noted that, in an attempt to resolve the conflict, the court resorted to speculation and conjectured the existence of a bail recognizance which ought to have been produced by the Police, the first respondent at the trial, to establish the date of the respondents’ release. He observed that the court adjudged the failure to produce the speculated document fatal to the case of the respondents at the trial in that the onus shifted to them.

Counsel noted none of the parties, in their affidavit evidence, alluded to the existence of the document which the court so referred to. He submitted he who asserts a fact must proof same, section 137 (1) of the Evidence Act; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Nwaru and Ors. v. Okoye and Ors (2009) 170 LRCN 108. He observed that, in the instant case, the first, second and fourth applicants asserted the infringement of their fundamental rights, in that they were unlawfully arrested and detained. He noted that the respondents countered this assertion. They justified the arrest and denied the unlawful detention. He contended that the evidential burden shifted back to the applicants, as the burden lies upon a party for whom the substantiation of a particular allegation is an essential element of his case, Nwaru and Ors v. Okoye and Ors (supra).

He submitted that the court was, merely, speculating when it placed reliance on a document, the existence of which was not alluded to by any of the parties in the affidavit evidence and found that the respondents at the trial failed or refused to produce the said document. He canvassed the view that the court was not permitted the indulgence of making findings on mere speculation, seismograph Ltd v. Ogbeni (1976) 4 SC 85. He, further, submitted that the court not competent to make a case for either or both parties and then proceed to give judgment. He maintained that the parties did not raise the issue to bail recognizance in the suit; hence, the judgment should have been confined to the issues which the parties raised, Oshotoba v. Olujitan (2000) 75 LRCN 395.

He, finally pointed out that it was an oversight on the part of the court when it held that the respondents, at the trial court, did not reply to the depositions of the fifth applicant/respondent in his affidavit in support of the application and, therefore, it was unchallenged. He drew attention to paragraphs 19-22 of the appellant’s Counter Affidavit where he countered the depositions, citing page 108 of the record. He submitted that the order made in favour of the fifth respondent was unjustified as the likely attempt to kill him was established in any manner. He urged the court to resolve this issue in favour of the appellant.

RESPONDENT’S ARGUMENTS

On his part, counsel for the respondents contended that the respondents had proved through their affidavit evidence that the appellant infringed on their fundamental rights. He pointed out that the affidavit evidence adduced by the appellant and the Commissioner of Police were false evidence. He noted that the second, third and fourth respondents, who were all known as at the time the appellant wrote his petition, were not mentioned in the petition. They were arrested in place of the first respondent was wanted. He maintained that their arrest and detention were unlawful. He noted that the evidence of the appellant, at the lower court, was hearsay evidence.

He pointed out that the appellant’s petition that was attached as exhibit 3 to the Counter Affidavit of the Commissioner of Police showed that appellant’s children, who were allegedly attacked, were critically ill at home as at July 18, 2008. He observed that there is no indication that they were taken to the hospital as at the date. He pointed out that, as at July 18, 2008, the medical report form was not in existence. It was, therefore, a forged document. He maintained that the appellant and the Commissioner of Police did not want oral evidence to be taken so that the lies they told in the case would not be known. He observed that, from the foregoing, it was not difficult for the trial Judge to reject the frivolous evidence of the appellant and, relying instead, upon the evidence of the respondent to give judgment in their favour.

RESOLUTION OF THE ISSUE

The lower court, in a bid to resolve the question whether the respondents succeeded in proving the infringement of their rights, observed at page 201 of the record:

… the first respondent says he released the second to fourth respondents on 21/7/08. While the applicants have not shifted their ground that it was on 23/7/08. It is the law that it is the party who would fail if no facts are presented that has the burden of proof… In this case, the second-fourth applicants have stated positively both in their statements and affidavit that they were released on 23/07/08. By so doing, the burden of proof had shifted to the respondents. The question is whether the respondents (particularly the first respondent) have discharged that burden.

The court pointed out the respective paragraphs of the affidavits of the respondents at the trial (paragraph 11 of the affidavit of the Police); paragraph 15 of the appellant, as respondent. It proceeded thus:

I may not blame the second respondent (the appellant herein) but I think the first respondent should have done much more than just stating that he released the second-forth respondents on 21/7/08.

Page 202 of the record.

Instructively, the parties did not join issues on the existence of any recognizance bond. Indeed, the respondent did not depose to their entering into any such bond before their release on bail on July 23, 2008. That notwithstanding, the lower court metamorphosed into a witness. It proceeded to chart a graphic account of how suspects are granted bail in the Police station. Hear this detailed account of how this is done, according to the lower court:

It is a very established and known procedure that before one is released on Bail by the Police, they must produce a surety who, in addition to formally applying for the Bail of the suspect must into a Recognizance to produce the suspect whenever he is wanted until the matter is disposed of. The only circumstance when a surety would not be required is when Bail is granted in self recognizance. Even in the event, the suspect would still enter into recognizance.

Page 202 of the record.

From the witness box, the court switched over to counsel for the applicants. It queried, most solicitously:

Is the respondent saying that there are no such documents or any of them in relation to this case? It is a surprise to me that the first respondent who produced and exhibited to his affidavit, the petition with which the investigation was initiated as well as exhibits 1, 1A, 2 and 2A did not see the need and importance of the recognizance which would have confirmed with finality the date the second-forth applicants were released by him.

Page 202 of the record.

On the strength of the above judicially-contrived evidence, the court fell back on section 149(d) of the Evidence Act (then application to the proceedings). It declaimed thus:

I am, therefore, left to presume that the first respondent failed and refused to produce the documents because he knows that the documents, if produced, would not support his contention that the second to fourth applicants were released on bail on the 21/7/08…

Pages 202-203 of the record.

That is not all. The court invoked section 149 (d) (supra) against the first respondent at the trial. However, as counsel for the appellant noted, none of the parties, in their affidavit evidence, alluded to the existence of the document which the court so referred to. In the absence of such averment, therefore, the court, wrongly, applied section 149 (d) (supra). This must be so for none of the parties adduced evidence in their respective affidavits that went to show the existence of the said recognizance bond, Abubakar v. Waziri [2008] All FWLR (Pt. 436) 2025, 2047; [2008] 14 NWLR (Pt. 1108) 507; Chemiron Int’l Ltd v. Egbujuonuma (2007) All FWLR (Pt. 395) 444. It would have been otherwise if the existence of the said document had been asserted in any of the averments in the affidavits. In such a situation, it would have been proper to invoke the said presumption, Nigerian Advertising Services Ltd v. UBA Plc (2005) 14 NWLR (Pt. 945) 421, 441; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1.

The question, however, still remains: in all of the above scenario, how was the second respondent [now, appellant] to bear any blame, if indeed, there was any need for the production of any recognizance in proof of the date of release? In fairness to the lower court, it absolved the appellant of any blame on this question. At page 202 of the record it acknowledged that it “may not blame the second respondent [the appellant herein).” However, the snag is that it still proceeded to award damages against the appellant!

As we shall demonstrate in the resolution of the third issue, this was a wrong approach. The Police have the prerogative for the reception of criminal complaints and the investigation of such complaints, see per Mukhtar, JSC (as she then was) in Fajemirokun v. Commercial Bank (2009) LPELR-SC.336/2002. As such, the appellant did not have control over the activities or duties of the first respondent [Commissioner of Police] in anyway whatsoever, Dumbell v. Roberts (1944) 1 All ER 326, approvingly, adopted in Fajemirokun v. Commercial Bank (supra); Samuel Isheno v. Julius Berger Nig. Plc (2008) 4 MJSC 104, 129. Indeed, as Ogebe, JSC held at pages 9-10 of Fajemirokun v. Commercial Bank (supra):

ISSUE THREE

Whether the decision and order of the trial court for the appellant only to pay damages to the second; third and fourth respondents is justified in law?

APPELLANT’S CONTENTION

On this issue, counsel pointed out that the trial court, after its findings at page 200, paragraph 2 of the record, went on to award damages against the appellant only. He observed that the appellant did not arrest or detain the first, second and third respondents. He submitted that what happened after the appellant’s report was, entirely, the responsibility of the Police. He canvassed the view that the report which the appellant made to the Police, in the case, was justified.
He submitted that the decision of the court to awarding damages against the appellant only who, merely, exercised his civil responsibility was erroneous. He urged on the court to resolve this issue in favour of the appellant.

RESPONDENT’S ARGUMENT

As noted earlier, at page 9, paragraph 4.0 of the respondent’s brief counsel for the respondents sought the leave of ‘to rely upon our reply to the first issue as our reply to this third issue.”

RESOLUTION OF THE ISSUE

As noted above, the Police have the prerogative for the reception of criminal complaints and the investigation of such complaints, see per Mukhtar, JSC (as she then was) in Fajemirokun v. Commercial Bank (supra). In our view, therefore, the present appellant did not have control over the activities or duties of the first respondent (Commissioner of Police) in anyway whatsoever, Dumbell v. Roberts (1944) 1 All ER 326, approvingly, adopted in Fajemirokun v. Commercial Bank (supra); Samuel Isheno v. Julius Berger Nig. Plc (supra). Indeed, as Ogebe, JSC held at pages 9-10 of Fajemirokun v. Commercial Bank (supra):

See, also, Adefunmilayo v. Oduntan (1958) WNLR 31; Gbajor v. Ogunburegui (1961) All NLR 882; Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635, 666; Gani Fawehinmi v. Col. Halilu Akilu & Ors (supra); A.G. Anambra State v. Chris Uba (supra). We resolve this issue in favour of the appellant.

Having resolved the three issues, validly, arising from the appellant’s Grounds of Appeal, Udeme v. Ugwu (supra); Udem v. Michelletti and Sons Ltd (supra); A.G. Akwa Ibom State v. Essien (supra); Atanda v. Ajayi (supra); Nigeria Customs Service v. Bazuaye (supra); Effiong v. Ebong (supra); Akinlagum v. Oshobaja (supra); Globe Fishing Ind. Ltd v. Coker (supra); Anyafulu v. Agaze (supra); Ezukwu v. Ukachukwu (supra), we have no difficulty in allowing this appeal. Appeal allowed. We, hereby, enter an order setting aside the Ruling of the lower court delivered on October 26, 2009. Appeal allowed. Parties are to their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: The draft of the lead judgment just delivered by my learned brother Chima Centus Nweze, J.C.A., in this appeal, was read by me before today. I completely agree with the views expressed on and in resolutions of the three (3) issues that call for decision, as set out therein.
For all the reasons, so proficiently adumberated in the lead judgment and which I hereby adopt, the appeal is allowed by me too in the terms thereof.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Chima Centus Nweze, J.C.A. I am in total agreement with the reasoning and final conclusions in the lead judgment. I also allow the appeal and abide by all the orders contained in the lead judgment including that as to costs.

Appearances

Etim OkonFor Appellant

AND

Ini ItongFor Respondent