COMMISSIONER OF POLICE TARABA STATE & ANOR v. ALH. MOHAMMED DABO & ANOR (2019)

COMMISSIONER OF POLICE TARABA STATE & ANOR v. ALH. MOHAMMED DABO & ANOR

(2019)LCN/13077(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/YL/215CM/2017

RATIO

APPEAL: PRELIMINARY OBJECTIONS HAVE TO BE TAKEN FIRST

Where a preliminary objection is raised as to the competence or otherwise of an appeal, the preliminary objection has to be taken first. See the decision of this Court in Abiola vs. Olawoye (2006) 13 NWLR (Pt. 996) 1.PER JAMES SHEHU ABIRIYI, J.C.A.

APPEAL: OMNIBUS GROUND OF APPEAL

The term Omnibus ground of appeal implies that the judgment of a trial Court cannot be supported by the weight of evidence adduced by the successful party or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified. It also implies that there is no acceptable evidence to support the findings of the trial Court or that the judgment in favour of a successful party is against the totality of the evidence adduced before the trial Court.
An omnibus ground of appeal deals essentially with evaluation of evidence led before a trial Court. It always alleges that the decision of the trial Court is against the weight of evidence.
The omnibus ground of appeal cannot be used to raise specific questions in an appeal. For example, it cannot be used to raise the issue of award of damages in an appeal

Such specific issue ought to be raised in the grounds of appeal. See decisions of the Supreme Court in Sha vs. Kwan (2000) 5 SC 178 and Bhojsons Plc vs. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330 and the decisions of this Court inA.G Akwa Ibom State vs. Essien (2004) 7 NWLR (Pt. 872) 288 and S.C.O.A (Nig) Plc vs. Mohammed (2004) 3 NWLR (Pt. 862) 20.PER JAMES SHEHU ABIRIYI, J.C.A.

FUNDAMENTAL RIGHTS MATTERS : NATURE

Fundamental human rights matters are serious matters. Allegations of breach of right to life are much more serious. The first right is the right to life. It is the most precious gift on earth. Thus the law provides that everyone is entitled to life and no one can be deprived of his life intentionally save in the execution of a sentence of a Court etc. See Section 33 of the 1999 Constitution FRN (as amended).PER JAMES SHEHU ABIRIYI, J.C.A.

JUSTICES:

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

1. COMMISSIONER OF POLICE TARABA STATE
2. OKPARAKA GEORGE
(The DPO Mararaba Baissa Division Donga L.G.A Taraba State) – Appellant(s)

AND

1. ALH. MOHAMMED DABO
2. UMARU MOHAMMED – Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of 15th February, 2017 of the High Court (Court below) of Taraba State sitting at Jalingo. The Respondents were the Applicants while the Appellants were the Respondents.

The action commenced by the Respondents against the Appellants was for the enforcement of the Respondents fundamental rights pursuant to Order 2 Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. The Respondents sought for the following reliefs:
(a) A declaration that the detention of the 2nd Respondent by the officers of the Appellants on 15th January, 2017 amounted to a breach of his constitutional right.
(b) A declaration that the beating, torture and inhuman treatment meted on the 2nd Respondent at Mararaba Baissa highway Donga Local Government Area of Taraba State amounted to the breach of his constitutional right.
(c) A declaration that the shooting and killing of unarmed Yusuf Mohammed who was the son of the 1st Respondent along Mararaba Baissa Federal Highway without any cause amounted to a breach of the constitutional right

to life of the deceased and the 2nd Respondent.
(d)The sum of One Hundred Million Naira (100, 000,000.00) being exemplary and aggravated damages for unlawful violation of the Respondents fundamental rights.
(e) An order compelling the Appellants to release immediately the corpse of the deceased for burial.

The application was brought upon the following three grounds:
(a)The Applicants Fundamental Rights to life, personal liberty and right to dignity of human person as enshrined under Sections 33, 34 and 35 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has been infringed upon.
(b)That the beating, shooting and killing of the 1st Applicants child in person of Yusuf Mohammed at Kpbauna Village along Mararaba Baissa Federal High Way by the men/officers of the Respondents without any justification constitutes a breach of the 1st Applicants son’s Right to life as enshrined under Section 33 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(c) That the beating, detention and torture of the 2nd Applicant constitutes a breach of his Fundamental

Rights to personal liberty to dignity of human person as enshrined in Section 35 and 34 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The facts of the case discernible from the affidavit evidence of the Respondents are as follows:
On the 15th January 2017, the 2nd Respondent was on the way to Mararaba Baissa to get a native veterinary doctor who would help his cow deliver safely. On reaching a police check point the policemen stopped the bike on which he was travelling. The police asked him for the knife and cutlass that he was carrying. He told the policemen that he had no weapon of any sort on him.

The policemen told him to bail himself with the sum of Ten Thousand Naira (N10, 000.00). When he asked the policemen what offence he had committed, they started beating him. He was thrown behind the police patrol van.
Another Fulani man came by and was arrested by the police and thrown at the back of the patrol van.

Then came two men on a bike. The police stopped the bike. The 2nd Respondent noticed the policemen talking to the men on the bike. Then the policemen started beating the man at the back of the motorcycle.

He fell down and the police shot him even though he was only carrying a herdmans stick. The police threw him into the boot of the patrol van and drove off.

The second Fulani who had been arrested escaped while the attention of the policemen was on the two men on the bike.
The police dropped the 2nd Respondent somewhere along the road.

The Appellants filed a counter affidavit. The salient facts from the counter affidavit are as follows:
That on 15th January, 2017 the police was on patrol. On getting to the road block they ran into armed robbers who opened fire on the police on seeing the police patrol van. The police fired back at the armed robbers and one of the armed robbers was gunned down. The others escaped. The suspect who was gunned down was rushed to the hospital but he died on the way to the hospital. The remains were deposited at the Takum General Hospital for autopsy.

After considering the affidavit evidence led by the parties and written addresses of learned counsel for the parties, the Court below did not find the Appellants liable for detaining, beating and torturing the 2nd Respondent. The Appellants

were however found to have unlawfully killed the son of the 1st Respondent and awarded the latter the sum of Five Million Naira (N5, 000,000.00) damages.

The Appellants have proceeded to this Court by a notice of appeal dated 7th March, 2017 and filed on 14th March, 2017. The notice of appeal contains the following two grounds of appeal:
PART OF THE DECISION APPEALED AGAINST
The decision awarding damages of N5, 000,000 (five million naira only) against the Appellants.
GROUNDS OF APPEAL
The decision of the trial Court is against the weight of evidence and upon receipt of the records of appeal, the Appellants shall file and serve more grounds of appeal and their particulars.

In an Appellants Brief of Argument dated 14th March, 2018 filed on 19 March 2018, deemed duly filed on 20th March, 2018 and further deemed duly filed on the 20th February 2019, the Appellants presented the following lone issue for determination:
Whether the Hon. Trial Chief Judge was right in law to have awarded the sum of N5, 000,000.00 as damages against the Appellants having regard to the facts and

affidavit evidence before the Court (Distilled from the omnibus ground of the Appellants Notice of Appeal dated 7/3/2017 and filed on 14/3/2017).

The Respondents filed a notice of preliminary objection dated 14th May, 2018 and filed the same day upon the following grounds:
(1) That the Appellants appealed against part of the decision of the trial Court but formulated an all encompassing notice of appeal; that is, the omnibus ground.
(2) That the omnibus ground of appeal does not allow an appellant to raise objection based upon the quantum of damages awarded.

The notice of preliminary objection was argued in the Respondents Brief of Argument dated and filed on 14th May, 2018 at pages 2 5. At pages 5 8 of the Respondents Brief the Respondents argued what they call Notice By Respondent of Intention To Contend That Decision of Court Below Be Varied.

The Respondents adopted the lone issue presented by the Appellants in arguing the appeal.

Arguing the appeal, learned counsel for the Appellants submitted that the learned trial Judge erred in law when he held that the killing of the deceased by

officers of the Appellants was intentional and proceeded to award the sum of five million Naira in favour of the 1st Respondent. The Court was referred to Section 33(2) of the 1999 Constitution FRN (as amended) and Afosi vs. The State (2013) 13 NWLR (Pt. 1371) 329.

It was contended that from the facts and circumstances of the case, officers of the Appellants acted in the good faith and within the confines of the law in self defence with the use of proportional force to that used by the robbers (son of the 1st Respondent inclusive). This did not amount to intentional or extra Judicial Killing.

The Court was referred paragraphs 7 (a) (g) of the Appellants counter affidavit Afosi vs. State (supra), Jeremiah vs. State (2012) 14 NWLR (Pt. 1320) and Sections 59 69 of the Penal Code, Laws of Taraba State.
The officers of the Appellants, it was submitted, could not be said to have breached or denied the deceased right to life.

The Court was referred to the decision of the Court below where it held that on the affidavit evidence the 2nd Respondent failed to show by credible evidence that he was tortured by men of the Appellants.

It was contended that the Court below having found evidence of 2nd Respondent not credible, it meant that the 2nd Respondent did not witness any incident. Therefore the Court below could not rely on the evidence of the 2nd Respondent to award damages in favour of the 1st Respondent.

The law, it was submitted, is that a self defeating unreliable and unsatisfactory evidence even if unchallenged, cannot be relied upon by the Court. Therefore the evidence of the 2nd Respondent being self defeating was unreliable and same could not be acted upon by the Court below. The Court was referred to Artra Industries vs. U.N.A.C.B (1998) 3 SCNJ 115, Jalingo vs. Nyame (1992) 3 NWLR (Pt. 231) 538.

It was submitted that the allegation against the Appellants was criminal in nature and ought to be proved beyond reasonable doubt. This the Respondents failed to do. The Court was referred to Otukpo vs. John (2012) 7 NWLR (Pt. 299) 357.

The further and better affidavit of the 2nd Respondent and the affidavit of one Adamu Kodejo, it was argued, are conflicting and inadmissible especially the evidence of Adamu Kodejo which is hearsay.

It was submitted that the Court below erred when it held that the failure of the Appellants to challenge the further and better affidavit amounted to admission.

It was submitted that from the affidavit evidence the identity of the Fulani man allegedly killed was not disclosed as well as the identities of alleged relations of the deceased.

It was submitted that oral evidence ought to have been ordered for and taken in view of the conflicts in affidavit evidence. The Court was referred to Lijadu vs. Lijadu (1991) 1 NWLR (Pt. 169) 627 at 649 and U.B.A Plc vs. Effiong (2011) 16 NWLR (Pt. 1272) 84 at 105.

It was submitted that where a Court fails to call oral evidence to resolve conflicting affidavit evidence, the consequence is that such a decision qualifies to be set aside on appeal as it amounts to a miscarriage of justice. The Court was referred to Akinsete vs. Akindurite (1966) ANLR 137 at 138 139.

Arguing the main issue for determination learned counsel for the Respondents submitted that the Court below did not state that the entire affidavit of the 2nd Respondent was unreliable.

It was submitted that even where crime is

alleged in a fundamental right proceeding all the Applicant has to prove is that his fundamental right has been breached. The Court was referred to Atakpa vs. Ebetor (2015) 3 NWLR (Pt. 1447) 549.

On the submission that there was conflict in the affidavit evidence which required the calling of oral evidence, learned counsel for the Respondents submitted that no conflicts were pointed out in the affidavit evidence of Adamu Kodejo and the further and better affidavit.

It was submitted that the Appellants failed to challenge material averments in the further and better affidavit of the 2nd Respondent. Therefore the Court below was entitled to accept such unchallenged evidence. It was submitted that from the affidavit evidence it was shown that the 1st Respondents fundamental right was breached. The Court was referred to Honda Place Ltd vs. Globe Motors Holding Nig. Ltd (2005) 14 NWLR (Pt. 945) 273.

It was submitted that a general denial as contained in the counter affidavit of the Appellants was too shallow and completely ineffectual as a challenge to the averment of specific details submitted on oath by the 2nd Respondent in the further and better affidavit.

The Court was urged to hold that the non response to the further and better affidavit was an admission.
It was submitted that the Appellants failed to join issues with the Respondents on the further and better affidavit. Therefore the question of material contradictions did not arise.

On what learned counsel for the Respondents called Notice By Respondent of Intention To Contend That The Decision of The Court Be varied, the Court was urged to vary the award of damages of five million Naira (N5, 000.000.00) to the Respondent and in its place make an award of one hundred million (N100, 000,000.00) claimed by the 1st Respondent.

On the Respondents Notice of Preliminary Objection, learned counsel for the Respondents submitted that a party who has limited himself by appealing against a part of the decision may not validly complain of failure to weigh the evidence since this calls for a consideration of the whole case. The Court was referred to the notice of appeal paragraph 2 of the Notice of Appeal. See page 68.
It was submitted that an appellant who is challenging specific findings of fact by a trial Court

on a specific issue should do so by a substantive ground of appeal and not under the omnibus ground of appeal.

The omnibus ground of appeal, it was submitted, does not allow an appellant to raise objection based upon the quantum of damages awarded. This should be expressly raised as a specific ground of appeal, it was submitted.

It was submitted that when a complaint is against the weight of evidence adduced before the trial Court and not against any specific issue such complaint must be concerned with the appraisal and evaluation of all the evidence and not the weight to be attached to a particular evidence. The Court was referred to Leyland (Nig) Ltd vs. Dizengoff (1990) NWLR (Pt. 134) 610 at 625.

The Court was urged to strike out the appeal in limine because the Appellant appealed against part of the decision of the Court below but formulated an all encompassing notice of appeal and also used the omnibus ground to argue the appeal.

Learned counsel for the Appellant submitted that for a claimant to be entitled to upward variation of damages awarded him, certain circumstances calling for such interference must be shown to the Appellate

Court. These are (1) That the Court acted under wrong principle of law; (2) That the Court acted in disregard of the applicable principles of law; (3) That the Court acted in misapprehension of fact; (4) That the Court took into consideration irrelevant matters and disregarded relevant matters whilst considering its award; (5) That injustice will occur if the Appellant Court does not act or interfere and; (6) That the amount awarded is so ridiculously low or ridiculously high and that it must have been an erroneous estimate of damages. The Court was referred to Ero vs. Tinubu (2012) 8 NWLR (Pt. 1301) 104, Oyeneyin vs. Akinkugbe 14 NSCQR 416 and U.B.N Ltd vs. Odusote Bookstores Ltd (1995) 9 NWLR (Pt, 421) 558.

The Respondents, it was submitted, have failed to show the existence of any of these circumstances to warrant the review of the damages of N5million.

On the preliminary objection of the Respondents, it was submitted that a competent ground of appeal is that which has not breached the rules of Court and has stated the problem/s between the contending parties and has not let anybody in doubt of the substance of the complaint and what

is expected in rebuttal. The Court was referred to Addax. Pet. Dev. Co. (Nig). Ltd vs. Duke (2010) 8 NWLR (Pt. 1196) 278 and Nwabueze vs. Nwora (2005) 8 NWLR (Pt. 926) 1.

The ground of appeal, the statement contained in the notice of appeal; as well as the notice of appeal, it was submitted, are competent.

It was submitted that the law allows the Appellants to formulate a lone ground of appeal and argue the appeal as long as the ground of appeal is competent. An omnibus ground of appeal, it was further submitted, can sustain an appeal. The Court was referred to Aderibigbe vs. Abidoye (2009) 10 NWLR (Pt. 1150) 437 at 652 and Onaga vs. Micho & Co. (1961) SCNLR 101.

It was submitted that the Appellants neither in their notice of appeal nor brief of argument raised any issue as to the quantum of damages awarded. Rather they challenged the decision of the Court below awarding damages against the Appellant which is the crux of the appeal.

It was submitted that when a decision is appealed against as being against the weight of evidence, the Appeal Court must not shy away from considering same and determine the appeal on the merit. The Court was referred

to Macaulay vs. Tukur (1888 1911) 1 N.L.R 35.

The Appellants did not raise objection to the quantum of damages awarded to the Respondents and did not appeal against only a part of the judgment as contended by learned counsel for the Respondents. I agree entirely rather with learned counsel for the Appellants that the Appellants did not raise objection as to the quantum of damages awarded but their complaint was against the decision awarding damages against the Appellants. The Appellants only relied on an omnibus ground of appeal to prosecute their appeal. The law allows them to do so.
The preliminary objection is in my view misconceived and should be overruled.
I therefore overrule the preliminary objection.

At page 62 63 of the record, the Court below made the following finding:
From the learned counsels submission and the

affidavit evidence placed in respect of the application and deposition by 1st and 2nd Applicants, and Adamu Kodejo which this Court has carefully read and considered along with the affidavit of the Respondents, it is strongly placed on record for the Applicants without any contradiction that the deceased Yusuf Mohammed the son of the 1st Applicant was unlawfully deprived of his right to life without any just cause contrary to Section 33(1) of the Constitution of the Federal Republic of Nigeria (as amended) which provides:-
Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.
With the affidavit evidence as per the deposition of the 2nd Applicant an eye witness at the scene and without any better affidavit evidence in contradiction, and law having recognized the evidence of an eye witness as the best piece of evidence, this Court therefore considers and accept the affidavit evidence of the 2nd Applicant in respect of the circumstances that led to

the death of 1st Applicants son as a credible and reliable deposition. This Court accordingly believe same and hereby hold that the killing of the deceased was intentional, because the deposition of the Respondents that was challenged by the further and better affidavit was not challenged by the Respondents.
The law is trite that any piece of evidence before the Court that is not contradicted and unchallenged by the Respondent, the Court is left with no other option than to believe same. See the case of Okereke vs. The State (2016) LRCN Vol. 260 Page 188 at 193 R. 3 where the Supreme Court held as per Ariwoola JSC that an undisputed facts require no further proof.

The above finding of the Court below is superficially damning. But it is not borne out of the affidavit evidence before the Court below. Firstly, the Court below from the said finding referred to the deposition of the 1st Applicant. There is nothing from the entire record before the Court pointing to any deposition by the 1st Respondent in this appeal. Secondly, the Court below relied heavily on the affidavit of the 2nd Respondent who it referred to as an eye witness. But

the 2nd Respondent in the affidavit in support of the application, nowhere indicated that he knew the person who he claimed was shot in his presence. I need not say that he did not mention the person who he claimed was shot in his presence since he did not indicate that he knew the person. Even in the Further And Better Affidavit also deposed to by the 2nd Respondent, he did not mention the name of Yusuf Mohammed as the alleged victim of the police shooting. See paragraph 6(c) of the Further And Better Affidavit where the 2nd Respondent deposed that when the deceased arrived the checkpoint, he was not armed. He did not say that when Yusuf Mohammed arrived the checkpoint he was not armed.

The Court below also relied on the affidavit of Adamu Kodejo to find the Appellants liable for the alleged unlawful killing of the 1st Respondents son. It is clear from paragraphs 10(e) and (g) and 11 of the Affidavit of the said Adamu Kodejo that it was one Abdullahi Mohammed, who told him that Yusuf Mohammed was shot dead by the police. From paragraph 10 (e) of that affidavit even Abdullahi Mohammed too was informed by a relation that Yusuf Mohammed was shot dead by the police.

On this type of evidence I am of the view that the finding of the Court below reproduced above is not supportable. This Court cannot support such a finding. Abdullahi Mohammed who informed Adamu Kodejo that Yusuf Mohammed was shot by the police did not depose to any affidavit. The relation who informed Abdullahi Mohammed is not even mentioned by name. Most surprising is the failure of the 1st Respondent to depose to an affidavit even only to say that his son Yusuf Mohammed was killed. Nobody is permitted to lightly claim that his right to life has been breached without making any effort to prove it.

The 1st Respondent could not be said to have taken this matter seriously when he lightly claimed that the police had unlawfully killed his son and

wanted one hundred million Naira paid to him without deposing to an affidavit in support of the application. There was no explanation as to why the 1st Respondent did not depose to an affidavit in support of his application. Even for this reason alone, his claim should have been dismissed.

It should be noted that the reliefs sought by the Respondents were declaratory in nature. It is the law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by a person seeking the declaratory relief. See Anyaru vs. Mandillas Ltd (2007) 4 SCNJ andChukwumah vs. S.P.D.C (Nigeria) Ltd (1993) LPELR-864 SC. In the instant matter, the 1st Respondent on the affidavit evidence before the Court below was not entitled to the declaration that the shooting of Yusuf Mohammed amounted to a breach of the constitutional right to life of the deceased and the 1st Respondent.

The Court below erred when it held that the Further Affidavit of the Respondents was not challenged without considering the counter affidavit of the Appellants contained at page 34 – 35.

The Court below ought to have put the affidavit evidence of the Respondents on one side of the imaginary scale of justice and the counter affidavit on the other side and see which weighed heavier not by the quantity of the affidavit evidence but by the quality. With due respect to the Court below, I think it failed in this duty. The filing of affidavit evidence is not a ding dong affair. Parties are not expected to keep filing responses to each others affidavits once issues have been joined.

The Court below therefore erred when it relied on the failure of the Appellants to file a further counter affidavit to the Further Affidavit of the Respondents as an admission. On the face of the counter affidavit filed by the Appellants they cannot be said to have admitted killing the said Yusuf Mohammed unlawfully.

There was therefore no basis for the award of Five Million Naira damages to the 1st Respondent.
There is also no basis for an upward review of the damages awarded from Five Million Naira to One Hundred Million claimed by the 1st Respondent.
The only issue for determination is hereby resolved in favour of the Appellants and against the Respondents.
The appeal is allowed.

The Order of the Court below awarding Five Million Naira damages to the 1st Respondent payable by the Appellants is set aside.
Parties shall bear their respective costs of the appeal.

CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft copy of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. I am in agreement with his reasoning and conclusion arrived at in allowing the appeal, I adopt same as mine in also allowing the appeal for being meritorious.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance a draft copy of the Judgment just rendered by my learned Brother Justice James Shehu Abiriyi JCA. For the reasons advanced in the lead Judgment, I also allow the Appeal. I abide by all the consequential orders contained therein.

Appearances:

Hamidu Audu (DPP, Taraba State) with him, C. R. Shaki (SCI)
For Appellant(s)

I. C. Osuji For Respondent(s)

Appearances

Hamidu Audu (DPP, Taraba State) with him, C. R. Shaki (SCI) For Appellant

AND

I. C. Osuji For Respondent