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COP EKITI STATE & ORS v. AREGBESOLA & ORS (2020)

COP EKITI STATE & ORS v. AREGBESOLA & ORS

(2020)LCN/14332(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/EK/40/2017

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

  1. COMMISSIONER OF POLICE, EKITI STATE 2. THE DIVISIONAL POLICE OFFICER, ILAWE-EKITI 3. VICTOR-POLICE OFFICER AT ILAWE 4. CATHERINE A POLICE OFFICER AT ILAWE 5. SGT. ABIOLA OMOTUNDE-POLICE OFFICER APPELANT(S)

And

1. MRS. SOLA AREGBESOLA 2. MRS. AJOKE ATERIGINA 3. MRS. AGNES AINA STONE 4. YEMISI FABUNMI 5. BUKOLA FABUNMI RESPONDENT(S)

RATIO

WHETHER OR NOT FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE IS SUI GENERIS

The fundamental Rights Enforcement Procedure is Sui generis and any claim touching on violation of rights to personal liberty guaranteed by the Constitution are usually made pursuant to it. The rules are specifically enacted to govern or regulate actions for enforcement or the protection of fundamental Rights guaranteed by the Constitution. See F.B.N. PLC V. A-G Federation (2018) 7 NWLR (Pt. 1617) 121 and Jack v. University of Agriculture, Makurdi.
Fundamental Rights actions are a claim of their own, though with a closer affinity to a civil action than a criminal action.​
The remedy available by this procedure is to enforce the constitutional rights available to citizens which has been contravened by another or others. Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights may have some criminal connotation, but will not raise the allegation of breach of fundamental Rights to the level or pedestal of a criminal allegation. It will therefore defeat its purpose to raise the standard of proof in an action for the enforcement of fundamental rights to that required of criminal allegation merely because that facts giving rise to the breach or contravention have semblance of criminal acts which seeks a simple, easy to attain and thus affective judicial process for the enforcement of fundamental rights available to citizens under Chapter iv of the 1999 Constitution of the Federal Republic of Nigeria (as amended). However, it must be noted and appreciated that the statutory duty of the police and other appropriate authorities to arrest, investigate and prosecute any person reasonably suspected to have committed an offence within scope of the law is not extinguished by the Fundamental Rights Procedure Rules. PER ELECHI, J.C.A.

WHETHER OR NOT A PERSON CLAIMING THE VIOLATION OF HIS FUNDAMENTAL RIGHTS MUST PLACE BEFORE THE COURT ALL MATERIAL EVIDENCE REGARDING THE INFRINGEMENT

It is trite law that any person claiming the violation of his or her fundamental Rights must place before the Court all the material evidence regarding the infringement or breach of such right for the claim to succeed. See Fajemirokun v. CB (CI) Nig LTD (2002) 10 NWLR (PT. 744) 95. PER ELECHI, J.C.A.

WHETHER OR NOT THE EVALUATION OF EVIDENCE IS THE EXCLUSIVE PREROGATIVE OF THE LOWER COURT WHICH WATCHED THE DEMEANOUR OF THE WITNESSES IN THE WITNESS BOX

It is well settled that evaluation of evidence before the Court is the exclusive prerogative of the lower Court which watched the demeanour of the witnesses in the witness box. By so doing, the Court uses the established criteria of placing it on the imaginary scale and weighing it to find out to which side of the scale, the evidence tilts because it is heavier not by the number of witnesses or amount of documents tendered but the probative value of each evidence. See Mogaji v. Odofin (1978) 4 SC 91, Ewulu v. Nwankpu (1991) 8 NWLR (Pt 210) 487, Solola v. State (2005) 5 SC (PT. 1) 135.
In the discharge of its primary duty of evaluating evidence, a trial Court is at liberty to adopt any style and no hard and fast rule could be down to be applied in all cases, as to the manner in which such evaluation must be carried out. See Ayorinde v. Sogunro (2012) 5-7 MJSC 9Pt 111). The fact that a trial Court prefers a piece of evidence or the evidence adduced by one party to that of the other party in making a finding and arriving at a decision, is evidence of proper and dutiful discharge of its primary function of evaluation of evidence on ground of law. PER ELECHI, J.C.A.

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ekiti State, Ikere-Ekiti Judicial Division delivered by Honourable Justice O.I.O. Ogunyemi on the 31st day of March, 2017.

The Appellants and the 2nd to 5th Respondents were sued as Respondents at the lower Court while the 1st respondent sued as the Applicant seeking the relief adumbrated on her statement at the lower Court.

In its considered judgment, (contained at pages 219 to 230 of the record of appeal hereinafter referred to as the “record”) the lower Court found that the fundamental rights of the 1st Respondent were infringed and awarded damages against the Appellants and the 2nd to 5th Respondents for the infringement of her fundamental rights.

Being dissatisfied with the judgement of the lower Court, the Appellants filed a notice of Appeal dated the 2nd day of May, 2017. The Notice of Appeal is contained at pages 231 to 237 of the Record. The Appellants raised 7 grounds of appeal from the judgment of the lower Court.

​The case of the 1st Respondent Mrs. Sola Aregbesola before the Lower

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Court was stated in three affidavits at pages 140-148 (1st Affidavit) 149-151 (2nd Affidavit) 152-155 (3rd Affidavit).

The 1st Respondent in the three Affidavit, summarily stated that, three years ago she noticed that her husband Mr. Ayodele Aregbesola was having illicit affairs with one Joke, sued as the 7th Respondent as Ajoke Aterigina at the lower Court, she exhibited photographs of her husband and Ajoke Aterigina. That on 5th day of May, 2016, she was in her shop at about 4pm when Ajoke and her mother sued as 8th Respondent at the lower Court came and started abusing her and threatened that if she does not leave Ilawe they will implicate her. She said that, she told Ajoke and her mother that if she answer them her husband will come and beat her. In paragraph 13 page 142 of the record, the 1st Respondent now, stated that, joke’s mother tore her clothes by herself and went away. 15 to 20 minutes later, Joke, her mother and her two sisters, sued as 9th and 10th Respondents at the lower Court, brought Police to arrest her. That she was taken to the police station, and that the police chained her hands and legs without asking her anything and started

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beating and torturing her. That she being arrested and detained for no reason and without being allowed to say anything and no statement was taken from her.

That the policemen on duty demanded N30,000 from her but she said she could only afford N12,000.00 and that one of the policemen pinned her neck to the wall and hit her head on the louvre blade. One of the policemen use the boot (sic) of the gun to hit her head. “That the two of them held my legs and they continue torturing me at most to the point of death.” See paragraph 22 page 144 of the Record). The 1st Respondent, in paragraph 23 of page 144 of the records confirmed that she was rescued by a tall man who identified himself as a police officer. The officer allowed her to speak with the D.P.O. who ordered her release at about 9.30 – 10pm.

The man who facilitated her release, led her and her daughter to the road, where an Okada man (unnamed) took here and her daughter to an hospital (unnamed). She exhibited pictures of how she was tortured battered and brutally injured. That she was at the police station on the following day “the 7th -10th Respondents were there, my

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lawyer was also there. The DPO called my husband. That my husband supported on 7th-10th Respondent who brought police to arrest, maim, torture and brutalize me”

The trial judge in the judgment delivered on 31st day of March, 2017, found for the 1st Respondent/Applicant and awarded Twenty Million Naira (N20, 000,000.00k) Damages and Two hundred and fifty thousand naira (N 250,000.00k) cost against the Appellants.
The Appellant filed this appeal in dissatisfaction with the entire judgment.

ISSUES FOR DETERMINATION
The Appellant formulated three issues for determination:
(1) Whether the 1st Respondent who is the Applicant at the lower Court had discharged the onus and standard of proof placed on her to warrant the grant of her claims and damages cum cost awarded?
(2) Whether the Lower Court had properly evaluated the evidence before concluding and granting the claims of the 1st Respondent?
(3) Whether the 1st Respondent is entitled to the quantum of damage awarded or any damage at all?

According to learned Appellant counsel, issue 1 is distilled from grounds 1, 2 and 4, issue 2 is distilled from grounds 3, 5 and 6,

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issue 3 is distilled from ground 7 of the Notice of grounds appeal.

ISSUE ONE
Whether the 1st Respondent who is the Applicant at the lower Court had discharged the onus and standard of proof placed on her to warrant the grant of her claims and damages cum cost awarded?

It is submitted that the 1st Respondent who was the Applicant at the lower Court had not discharged the onus and standard of proof placed on her to warrant the grant of the claims and damages awarded for her and against the Appellant.

It is trite Law that any person claiming the violation of her fundamental Human Rights must place before the Court ALL the vital evidence regarding the infringement or breach of such right for the claim to succeed. See Fajemirokun vs. CB (CI) Nig. (2002) 10 NWLR Pt 774 page 95 ratio 4.

Learned Appellant counsel reiterated that the Appellants did not deny the fact of arrest of the 1st Respondent over allegation complaint of Assault made against her by the 2nd and 3rd Respondents. The 1st Respondent in her Affidavit on page 142, confirmed that the 2nd-5th Respondent brought police to arrest her. This is in agreement with the averment of the

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Appellants on paragraph 12, page 175 of the record and Exhibit CPA on page 183 of the record. From the plethora of authorities, the Appellants has the statutory powers to receive criminal complaints, invites, arrest, investigate and prosecute any person so alleged if found culpable.
See Fajemirokun v. C B (CI) NIG. Ltd (Supra)

It is contended by the Appellant that the facts that the 1st Respondent was released on bail to her daughter that very night, few hours after her invitation/arrest as exhibited in pages 175-176 and page 185 of the record was not in any where contracted. The averment of the 1st Respondent on paragraph 15 page 142 of the record, was rightly displaced as false, by the deposition of the Appellant in paragraph 15 page 142 of the record where she claimed “… That I am been arrested and detained for no reason and without being allowed to say anything and no statement taken from me.” Exhibit CPB on page 184 of the record is the statement of the 1st Respondent in her own handwriting, before she was released on bail to return the following morning. Appellants have justified reason for the arrest of the 1st Respondent and her

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release within few hours on bail to her daughter. On the basis of the above, it is submitted that the judgment of the trial judge is perverse.

On the claim of torture, maiming and indignity to her person, it is submitted that it is an allegation that borders on crime and the standard of proof is that beyond reasonable doubt. See NWAFORNSO V. TAIBU (1992) 1 NWLR (219) 619, SECTION 135 (1) of the Evidence Act 2011.

On the allegation that the Appellant and daughter were taken to the hospital for treatment as a result of the torture, the said hospital was not named through out the proceedings, no records of either hospital card, receipts of drugs procured, X ray or was any medical report tendered and admitted. That according to learned counsel amounts to with holding evidence contrary to Section 167 (d) of the Evidence Act 2011.

From the affidavit evidence of the 1st Respondent, it was not averred that she took any pictures at any place time or by any person nor was it mentioned in evidence during the proceedings so, how Exhibits SA (2a – g) came about is unknown.

In contradicting the reliance of the 1st Respondent on Exhibit SA (SA-G)

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aforementioned, the Appellants, averred in their 1st Counter affidavit at paragraph 21, that the photographs are not recent photographs sometimes in 2015 when she was involved in a case of affray. Exhibit CP ‘D’, CP ‘E’ on pages 186 and 187 of the records are statements of Ayo Aregbesola the husband of the 1st respondent, to the effect Exhibit SA (2A –G) are not recent photographs. The Resworn counter affidavit on page 197-198 of the record is that of CPL Adaranojo, who investigated the Affray case involving the 1st Respondent in 2015, and therein averred that he had seen the photographs before in 2015, he attached Exhibit CP ‘F’ On page 199 of the record, which was the statement of the 1st Respondent in 2015. None of these averments in the counter affidavit were contradicted by the 1st Respondent other than in her further affidavit at page 205 – 207 filed out of time, without leave, which the learned trial judge refused at page 206 paragraphs 5 page 227 of the record. Even if the further affidavit is considered, the response of the 1st Respondent at page 206 paragraphs 9 is that “I know that Exhibit SA (2a

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– g) were taken in 2016, when I was tortured, battered, beaten and brutalized by police on the instigation of the A – 10th Respondent.” The 1st Respondent never said, that she went to the police station with photographer on 5/5/2016.

It is submitted that without sentiment, the evidence of the Appellants has successfully impeached the claim of torture by the 1st Respondent and reliance on Exhibit SA (2a-g) without conceding that they conflict with the affidavit evidence of the 1st Respondent. The Court ought to resolve the conflict by calling oral evidence. SeeUgwu v. PDP (2015) EJSC (Vol. 13) 120, Falobi v. Falobi (1976) 9-10 SC. The Court is urged to discountenance Exhibits SA (2a-g) and resolve this issue in favour of the Appellant.

ISSUE TWO
“Whether the Lower Court had properly evaluated the evidence before concluding and granting the claims of the 1st Respondent. Ground 3, 5 and 6 of the Notice and grounds of Appeal.

It is submitted that the learned trial judge had not properly evaluated the evidence before him, which had occasioned this miscarriage of justice.

It is trite that civil matters are decided on the

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balance of probability and the preponderance of evidence. A Court has the duty to evaluate and assess all evidence before it. See Odusote v. Odusote (2013) ALL FWLR (Pt. 668) 867 CA; Dantata v. Mohammed (2013) ALL FWLR (Pt 675) 279 CA. A judge is therefore expected to properly weigh the evidence of the 1st Respondent against that of the appellants, without exception.

The evaluation of the evidence of the 1st Respondent and the appellants by the trial judge was contained at pages 227-228 of the record, which embodies the judgment. The learned trial judge at paragraph 3 of page 227 of the record, admitted that the argument of the counsel to the 1st Respondents against Exhibit SA (2A-G) is convincing, he however made case for the 1st Respondent by saying that; “I do not believe that the applicant is a professional litigant who goes about displaying a set of photographs all over the place”. The learned trial judge over looked the counter affidavits of the Appellants at page 197-198 which is that of the investigating police officer, who claimed that he had seen the same picture in 2015. This piece of evidence by the appellants was not

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contradicted by the 1st Respondent, and ought to have deemed admitted. See H.S. Engr. Ltd v. S. A. Yakubu (Nig) Ltd (2009) 10 NWLR (Pt 1149) 416.

From the above, it appears that the learned trial judge simply believed what the Applicant said by holding that no investigation was carried out, nor was statement taken.

Exhibit CP’B’ at page 184 is the undenied statement of the 1st Respondent in her own handwriting, taken that night 5/5/2016, but His Lordship closed his eyes to this. His Lordship equally closed his eyes, to the resworn 4th counter affidavit on page 194-196 by the senior police officer on duty that night, and even to the statement of Ayo Aregbesola the 1st Respondents husband on page 186 and 187 of the records to the effect that Exhibit SA (2a-g) are fabricated. His Lordship also over looked and attached no probative value to the counter affidavit on page 197-198 of the record and Exhibit CP ‘F’ at page 199 of the record, which is to the effect that, the 1st respondent once had case of Affray in 2015, during which she displayed the same set of photographs. The learned trial judge did not in anyway resolve or attempt

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to resolve these conflict of evidence before concluding for the 1st Respondent. This deliberate oversight and lack of proper evaluation of evidence, which occasioned the miscarriage of justice contravened the provision of Law.
The Court is urged to resolve this issue in their favour.

ISSUE THREE
“Whether the 1st respondent is entitled to the quantum of damage awarded or any damage at all.” Ground 7 of the Notice and grounds of Appeal.”

It is trite that the purport of award of damages is to compensate the claimant for the damages, loss or injury he had suffered as a result of the action or default of the defendant. See EFCC V. ODIGIE (2013) ALL FWLR (PT. 692) 1797 ratio 10, SHUKKA V. ABUBAKAR (2012) 4 NWLR (PT. 1291) 497.

Learned Counsel stated that the purport of the above guiding principle in assessment and award of damages is that, the damage or compensation is only for the benefit of the aggrieved claimant and not for any other person or persons not a party to the suit. Consideration for the award is therefore limited to restitute the injury of the claimant.

Accordingly, he submitted that the award of N20 Million

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Naira is unreasonable and unaccepted in law.

The award of damages is for the benefit of claimant not other person or based on speculation. The 6th claim of the 1st Respondent referred to by the trial judge in the last paragraph of page 229 of the record, is in page 137 of the record as 5th claim, for the violation of her fundamental right and not to discourage the infraction of other people’s right. This is not a class action, he submitted.

The Court is urged to reverse the quantum of damages awarded by the trial judge on wrong principle of law as the trial judge made the award in the interest of persons not privy to the suit. See Admin v. N. B.C. Ltd (2010) 9 NWLR (Pt 1200) 543, Aremu Hassan v. BENJAMIN Tade (2011) LPELR 4235 (CA), Bhojsons PLC V. Daniel Kalio (2006) ALL FWLR (Pt 312) 2038-2064, Gari v. Seirafina Nig Ltd (2008) 2 NWLR (Pt. 1070) 1 at 20, Chief Isaac Olokunlade & Sons V. Chiefs Peter Adebisi Ademiloyo (2011) LPELR-3943 (CA), Sadiq Nuhu v. D. S.S, Kwara Command (2017) LPELR 42351 (CA).

Appellant’s Counsel contends that the 1st Respondent, who painted a picture of being heavily tortured at page 142-143 of the record

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reported in an unnamed hospital, did not disclose payment of money for treatment in the hospital and was at the police station the following morning where she was tormented the previous night as averred in paragraph 4 page 150 of the record. There was no evidence that she reported back to the hospital or any other hospital for further treatment inspite of the “near death torture”.

This has certainly not disclosed enough evidence to warrant the quantum of Twenty Million Naira (N20,000,000.00k) as damages.

He submitted that, the quantum of award was based on scanty evidence, wrong principle of law and speculation, hence ought to be disallowed. As the quantum of award was based on scanty evidence, wrong principle of law and speculation, hence ought to be disallowed as the quantum of damage is excessive and unreasonable.

The Court is urged to resolve this issue in their favour, allow the Appeal and set aside the judgment of the lower Court.

The Respondents raised three issues for determination which said 3 issues are distilled from the seven grounds of Appeal contained in the notice of Appeal thus:
1. WHETHER the lower Court was

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right in finding that that the Appellants are in breach of the constitutionally guaranteed fundamental rights of the 1st Respondent on the strength of the evidence before it (Grounds 1, 2 and 4)
2. WHETHER the lower Court properly evaluated the totality of the evidence before it in finding in favour of the 1st Respondent.
3. WHETHER the 1st Respondent is entitled to damages as awarded by the lower Court (Ground 7)

ISSUE ONE
WHETHER THE LOWER COURT WAS RIGHT FINDING THAT THAT THE APPELLANTS ARE IN BREACH OF THE CONSTITUTIONALLY GUARANTEED FUNDAMENTAL RIGHTS OF THE 1ST RESPONDENT ON THE STRENGTH OF THE EVIDENCE BEFORE IT.

It is contended that it is not in doubt that the 1st Respondent was arrested and detained by the Appellants from the evidence adduced by the parties at the lower Court. The 1st Respondent established in her evidence at the lower Court that she was arrested and detained by the Appellants based on the report made by the 2nd Respondent. The Appellants also admitted this fact in their evidence at the lower Court. See pages 141-143 and 174-182 of the record.

The complaint of the 1st Respondent is against the abusive use of

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the powers of the Appellants in beating her and torturing her which is a violation of her fundamental right to human dignity. The powers of the Appellants without any shadow of doubt cannot be used to achieve an unconstitutional result to wit; to infringe the fundamental right of the 1st Respondent to human dignity. While the statutory power of the Appellants to arrest and detain persons or investigate crime are no doubt statutorily guaranteed, that law is well settled that same must be done within the ambit of the law otherwise the Court would interfere with the abusive exercise of such powers. See Mrs. Baby Justina Luna v. C.O.P., Rivers State Police Command and Others (2010) LPELR – 8642 (CA) P. 6-17 Paragraphs F-A.

Learned Respondent’s Counsel submitted that from the facts contained in the affidavit support of the 1st Respondent’s application and the exhibits attached, it was established that her right to dignity of a human person, right to personal liberty and right to freedom of movement as guaranteed by Section 34, 35 and 41 of the 1999 Constitution as amended and Articles 5, 6 and 12 of the African Charter of Human and peoples’ Rights (Ratification and Enforcement) Act

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were infringed upon by the Appellants. The appellants infringed the 1st Respondents fundamental rights with impunity having arrested her without any good reason, detained, chained, tortured and brutalized her. It is submitted that the failure, refusal and neglect of the 2nd to 5th Appellants to perform their duties in this case in accordance with the law, they must be held liable for their actions in detaining, chaining, torturing and brutalizing the 1st Respondent. See Ekpu v. A/G/Federation (1998) 1 HRLRA Page 421 Para A.

Learned Counsel argued that the fundamental rights actions are sui generis and are only proved by preponderance of evidence by way of affidavit evidence. See Director, DSS V. Olisa Agbakoba (1999) NWLR (PT 595) 425, Skye Bank v. Njoku & Ors (2016) LPELR-40447 (CA). It is submitted that contrary to the Appellant’s contention, torture, beating, chained and brutalized raised by the 1st Respondent in the affidavit in support are not allegations of crime and does not require proof beyond reasonable doubt because they are not codified in our criminal code laws. Therefore it

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is argued that the 1st Respondent need not to prove that she was tortured beyond reasonable doubt. He submitted that the 1st Respondent having established the allegations of those reliefs, the Appellants have a bounding duty to justify same on the strength of the decision Director DSS V. A/G Federation (Supra).

The Appellants contention that the 1st respondent supported her claim of torture and graphically illustrated same at paragraphs 15 and 22 of pages 142 to 143 of the record and exhibited Exhibits SA (2a-g) but same was not exhibited to the affidavit in support of the motion on notice is of no moment on the strength of the decision in EFCC V. DADA (2014) – 24256 (CA) and the provision of Order IX Rule 1 of the fundamental Rights (Enforcement Procedure) Rules 2009.

The appellants also argued that the 1st Respondent did not name the Hospital she was taken to throughout the proceeding and no records or even medical report was exhibited as such same amounts to withholding evidence which is against Section 167(d) of the Evidence Act, 2011. He submitted that Section 167(d) of the Evidence Act is inapplicable to the facts of this case. The 1st

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Respondent is not the custodian of the Hospital records where she was treated as such the contention of the Appellants that she withheld evidence is of no moment.

With regards to the argument of the Appellant in paragraph 6.6 of their brief to the effect that the 1st Respondent did not mention in the entire proceedings that she took photographs after the alleged torture, he submitted that there is no rule of law or procedure that states that she must state that she took pictures. What is more, the pictures were produced in Court by annexing same to her further affidavit as Exhibits 2 (a-g). The appellants totally misconceived the procedure under fundamentals rights which is proved by affidavit evidence different from pleadings where foundation is laid and objections taken before a document can be admitted. The law is well settled that documents annexed to affidavits as Exhibits already form part of the evidence before the Court as such the issue of laying foundation does not arise. See D.G, DICN & Anor v. DINWABOR & ORS (2016) LPELR-41316 (CA).

Having relied on the above authority, it is therefore submitted that the objection raised by the

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Appellants to the admissibility of Exhibits SA (2a-g) is misconceived as those exhibits formed part of the evidence at the lower Court upon filing same.

That attack on Exhibits SA (2a-g) by the Appellants in paragraph 6.7 of their address to the effect that Exhibits SA (2a-g) are pictures the 1st Respondent took in 2015 is clearly an afterthought. It is pertinent to note that the Appellants never produced the extract from the crime diary for the alleged 2015 incident as well as the IPO’s report and recommendations which would have shown that the pictures (Exhibits SA, 2a-g) were taken in 2015 and not in 2016. The Appellants failed to produce any document made in 2015 where Exhibits SA (2a-g) were referred to. The appellants made heavy weather of the Resworn counter affidavit contained at page 197-198 of the record sworn to by one CPL Adaran Ojo who alleged he investigated a case of Affray involving the 1st Respondent in 2015. Exhibit CP “F” which was the statement he obtained from the 1st Respondent was annexed to the said resworn counter affidavit however a careful reading of Exhibit CP “F” reveals there is no mention

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of any picture in the said statement. If CPL Adaran Ojo indeed saw those pictures (Exhibit SA-2a-g was not in the Appellants custody or mentioned anywhere in their records. It is submitted that the affidavit evidence (Exhibit SA 2a-g) as such the documentary evidence becomes hanger from which to assess her oral testimony. See Ukeje v. Ukeje (2015) NHRLR (Pt 1) 287 at 291, Kimdey & Ors v. Military Governor Gongola State & Ors (1988) 19 NSCC (Pt.1) 827, Omoregbe v. Lawani (1980) 12 NSCC 146.

Respondent’s Counsel contends that the Appellants evidence that Exhibits SA 2a-g were taken in 2015 is clearly an afterthought and an attempt to undermine the evidence of torture, beating and chaining evidence by Exhibit SA 2a-g. If indeed Exhibits 2a-g were in existence in 2015, it would have been mentioned in the Appellants records in 2015. The only document the Appellants exhibited which was made in 2015 is Exhibit CP ‘f’ which is the statement of the 1st Respondent. There was no mention of Exhibits SA 2a-g in the statement. The Appellants failed woefully to prove their allegation that the pictures were taken in 2015 as it is trite that he

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who assert must prove. See Emeka v. Rawson (2001) FWLR (PT. 67) 999, APC V. INEC & ORS (2014) LPELR – 24036 (SC) P. 67.

Again the feeble attempt by the Appellants in paragraph 6.9 of their Appellants’ brief to raise contradictions in the 1st affidavit to the 1st Respondent (at Pages 140 – 148 of the record) and her 2nd Affidavit (at pages 149-151 of the record) is of no moment. The fact that the Appellant said she was tortured the day before and the deponent in the 2nd affidavit said he was at the Police Station that she had bruises does not amount to a contradiction. See Usen v. State (2012) LPELR – 20063 (CA).
The Court is urged to resolve this issue in favour of the Respondent.

ISSUE TWO
Whether the lower Court properly evaluated the totality of the evidence before it in finding in favour of the 1st Respondent (Ground 3, 5 and 6)

It is contended that the lower Court properly evaluated the evidence before it before reaching the conclusion that the Appellants breached the fundamental right of the 1st Respondent and awarded compensatory damages as a consequence, the law is well settled that Evaluation of evidence is

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the exclusive preprogative of the lower Court. In evaluating the evidence before it, the lower Court carefully considered the totality of the evidence before it in reaching the conclusion that it did not believe that the 1st Respondent is a professional litigant who goes about displaying a set of photographs all over the place. The mere fact that the lower court did not believe the averment of the Appellants that the 1st Respondent is a professional litigant does not amount to making a case for the 1st Respondent as alleged by the appellants at paragraph 6.16 of their Appellants’ brief.

Contrary to the contention of the Appellants in paragraph 6.16 of their brief that the trial judge over looked their counter affidavit contained at pages 197-198 which is that of the Investigating Police Officer who claimed that he had seen the same pictures in 2015 and that same was not contradicted by the 1st Respondent, see pages 205 -207 of the record where the 1st Respondent filed a counter affidavit to debunk the averments in the counter affidavit of the Appellants at pages 197-198 of the record. Therefore the erroneous submission of the Appellants that the

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lower Court ought to have deemed there assertion on the pictures as admitted relying on H.S ENGR. LTD V. S.A. YAKUBU (Nig.) Ltd (2009) 10 NWLR (Pt. 1149) 416 is misconceived.

In the Appellants’ attempt to challenge the evaluation of evidence by the lower Court at paragraph 6.17 of their brief they alleged that the lower Court held that the 1st Respondent’s further affidavit filed out of time without leave should be disregarded but the lower Court regarded same. The Appellants failed to show where and how the lower Court regarded same or how same affected the decision of the lower Court. Assuming without conceding that the lower Court regarded same, all the same the lower Court was on solid ground in so doing on the strength of the provision of Order IX Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009.

The Court is urged to do substantial justice in this appeal as the era of technical justice is over and to hold that the lower Court was right to consider the 1st Respondent further affidavit. See Kwage v. Upper Sharia Court & Ors (2017) LPELR-42508 (CA).

The contention of the Appellants that the lower Court

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did not properly evaluate the evidence placed before it is predicated on the fact that the lower Court did not accept Exhibits 5A (2a-g) as fabrications. Also contrary to the Appellants assertion that they conducted investigation over the subject matter of this suit, the Appellants did not exhibit any investigation report to establish that indeed, it conducted investigation or debunk the claim of the 1st respondent that there was no investigation.

The contention of the Appellants that the lower Court shut its eyes to their resworn 4th Counter Affidavit contained at page 194-196 of the record and the statement of Ayo Aregbesola contained at pages 186-187 of the record is not correct as it is clear that those statements contained in those documents were clearly an afterthought as they were made in 2016 after they had seen Exhibits 2a-g relied on by the 1st Respondent to prove her beating, torture and brutalization by the Appellants. The lower Court having considered the totality of the evidence held that it did not believe that the 1st respondent was a professional litigant who went about parading some set of pictures.

It is therefore submitted that

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the lower Court carefully considered and evaluated the evidence before it reached its decision by relying on the documentary evidence filed by both parties which he submitted is proper in law. See Oil & Gas Export free Zone Authority v. Osanakpo (2009) LPELR-8504 (CA), Dana Impex Ltd v. Awukam (2006) 3 NWLR (PT. 968) 544 at 563, Onagoruwa v. Adeniji (1993) 5 NWLR (PT. 293) 317.
The Court is urged to resolve this issue in favour of the Respondent.

ISSUE THREE
“Whether the 1st Respondent is entitled to damages as awarded by the lower court”-Ground 7.

On this issue, it is submitted that where an applicant established that his or her rights have been violated by the actions or actions of the respondent, the Applicant is entitled to compensatory damages from the Respondent as penalty for the wrong(s). See Awoyera Sunday v. IGP & Anor (2015) 1 NHRLR 58 Fugu v. President (2009-2010) CHR 1 at 20.

Learned counsel submitted that the 1st Respondent whose arrest and detention has been held to be illegal and unconstitutional by the lower Court is entitled to an award of compensatory damages for the infringement of her fundamental

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rights guaranteed under the Nigerian Constitution and the African Charter on Human and peoples Rights. See Ekpu v. Attorney General of the Federation (Supra) and Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915 at 953. N. A. U V. Nwafor (1999) 1 NWLR (Pt. 585) 121 at 133, Bello v. A/G Oyo State (supra), Chief Chinedu Eze & Anors v. IGP & 4 Ors (2007) CHR 43, Okere v. Arogundade (2009-2010) CHR 22 at 58-59.

It is submitted that the sum of N20,000,000 (Twenty Million Naira) awarded by the lower Court considering the beating, torture, and brutalization the 1st Respondent suffered is not excessive as the 1st Respondent is entitled to compensatory damages as awarded by the lower Court after being guided by the principles set out in Ajayi v. A.G. Federation (1998) 373.

Stretching the argument further, it is submitted that the comment of the lower Court “to discourage further infraction of other people’s rights was an obiter dictum and not the Ratio decidendi which cannot form the basis of an appeal. See K.R.K Holdings Nig Ltd v. F. B. N. & Anor (2016) LPELR – 41463, Achiakpa & Anor v. Nduka & Ors (2001) LPELR-64 (SC).

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In the final analysis, the Court is urged to resolve issue three in favour of the 1st Respondent as the fundamental Rights of the 1st Respondent has been breached also to dismiss the Appeal as being unmeritorious and uphold the judgment of the lower Court.

The Appellant filed a Reply brief to the 1st Respondents brief of argument on the 30/4/2019. In paragraph 2.1 of the Appellant’s Reply brief, it is stated thus:
“………. the assertions and arguments canvassed by the 1st Respondent at paragraph 5.06 of the Respondents brief of argument which restate that the major claim of the 1st Respondent/Applicant at the lower Court is that of Assault or battery.”

I have perused the aforesaid paragraph of the 1st Respondent brief of argument and there is no such contention. Learned Counsel as a minister in the temple of justice owe it as a duty not to mislead the Court in whatever way. Other arguments and submissions are a re-argument of the appeal already argued in the Appellants brief of argument contrary to the Rules of this Court. It is hereby discountenanced.

RESOLUTION OF ISSUES
This appeal will be considered and

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determined on the issues as distilled by the Appellant in his brief of argument thus:
ISSUES FOR DETERMINATION
(1) Whether the 1st Respondent who is the Applicant at the lower Court had discharged the onus and standard of proof placed on her to warrant the grant of her claims and damages cum cost awarded?
(2) Whether the Lower Court had properly evaluated the evidence before concluding and granting the claims of the 1st Respondent?
(3) Whether the 1st Respondent is entitled to the quantum of damage awarded or any damage at all?

MARRIAGE OF ISSUES TO GROUNDS OF APPEAL.
Issue 1 is distilled from ground 1, 2 and 4, issue 2 is distilled from grounds 3, 5 and 6, issue 3 is distilled from ground 7, of the Notice of Appeal.

ISSUE ONE
“Whether the 1st Respondent who is the Applicant at the lower Court had discharged the onus and standard of proof placed on her to warrant the grant of her claims and damages cum cost awarded.”

This issue is distilled from grounds 1, 2 and 4 of the Notice and ground of Appeal.

The fundamental Rights Enforcement Procedure is Sui generis and any claim touching on violation of

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rights to personal liberty guaranteed by the Constitution are usually made pursuant to it. The rules are specifically enacted to govern or regulate actions for enforcement or the protection of fundamental Rights guaranteed by the Constitution. See F.B.N. PLC V. A-G Federation (2018) 7 NWLR (Pt. 1617) 121 and Jack v. University of Agriculture, Makurdi.
Fundamental Rights actions are a claim of their own, though with a closer affinity to a civil action than a criminal action.​
The remedy available by this procedure is to enforce the constitutional rights available to citizens which has been contravened by another or others. Indeed, in most cases, the acts or facts giving rise to the contravention of such fundamental rights may have some criminal connotation, but will not raise the allegation of breach of fundamental Rights to the level or pedestal of a criminal allegation. It will therefore defeat its purpose to raise the standard of proof in an action for the enforcement of fundamental rights to that required of criminal allegation merely because that facts giving rise to the breach or contravention have semblance of criminal acts which seeks a simple,

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easy to attain and thus affective judicial process for the enforcement of fundamental rights available to citizens under Chapter iv of the 1999 Constitution of the Federal Republic of Nigeria (as amended). However, it must be noted and appreciated that the statutory duty of the police and other appropriate authorities to arrest, investigate and prosecute any person reasonably suspected to have committed an offence within scope of the law is not extinguished by the Fundamental Rights Procedure Rules.

In the instant case, it is the case of the 1st Respondent that about three years ago she noticed her husband was having an extra marital affair with one lady called Joke (The 2nd Respondent herein) sued as 7th Respondent at the lower Court and exhibited the picture of the lady and her husband to substantiate same. On the 5th day of May, 2016, the 1st Respondent was in her shop with her children when the 2nd Respondent and her mother came to the 1st Respondent’s shop about 4.00pm. The 2nd Respondent started abusing the 1st Respondent and said that she wants the 1st Respondent to shift for her to marry her husband initially but now she wants the 1st

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Respondent to leave Ilawe, Ekiti completely.

The 2nd Respondent continued her threat to the 1st Respondent saying if the 1st Respondent does not leave Ekiti for her she will blind her eyes. That it is because the 1st Respondent is still being seeing that she has refused to leave Ilawe-Ekiti. The 2nd Respondent was supported by her mother while she was issuing these threats to the 1st Respondent.

The 1st Respondent told the 2nd Respondent and her mother to go away and she entered her shop as she feared that if she answered them her husband will take side with them and beat her. Thereafter the 1st Respondent saw the 2nd Respondent’s mother tear her clothes by herself and went away. About 15 or 20 minutes later the 2nd Respondent, her mother and her two sisters (Yemisi and Bukola) returned to the 1st Respondent’s shop with the police to arrest the 1st Respondent and she was taken to the Station, Ilawe-Ekiti and detained till 10.00pm.

It was in evidence at the lower Court that the appellants chained the 1st Respondents hands and legs without asking her any questions, beat

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her up and tortured her. She called one of the Police Officers on duty popularly called “Chief” and informed him that the allegations against her are not true that she is being detained for no reason without being allowed to say anything.

The said Chief threatened the 1st Respondent that the family that brought her is well respected family in Ilawe – Ekiti and put her in the cell and said she would be there for four (4) days before they would conduct investigation. The 1st Respondent’s plea to be allowed to call her daughter to bring her inhaler and drugs was refused. Her further pleas made him furious and led to continued beating, slapping and torturing while the 1st Respondent was being chained. The Officer called his colleagues Victor, Catherine, Abiola and one other Police Officer and the five of them intensified the beating and torturing of the 1st Respondent. One of the Officers pinned her neck to the wall and hit her head on the louvre blades. The one called victor used the butt of the gun to hit the 1st Respondent’s head. The 1st Respondent was beaten and toured almost to the point of death.

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It was the intervention of a good Samaritan who called the DPO of the Police Station that made the 2nd Respondent call the 3rd to 5th Respondents to release the 1st Respondents. Upon her release on Okada man took her and her daughter to the Hospital and she relied on Exhibits SA 2 a-g which are the pictures showing how she was tortured, battered and brutally injured by the Appellants.

It is the evidence of the 1st Respondent that one of her eyes is affected and going bad now due to the torture and brutality from the police officers which has really disfigured her entire existence.

Essentially the plank of the Appellants’ defence to the 1st Respondent’s case at the lower Court is that they arrested the 1st Respondent but they denied beating, torturing and chaining her. It is their case that Exhibit SA-2 a-g are fabrications of lies to call for sympathy and sentiment. They alleged that Exhibits SA 2 a-g were not recent pictures that the 1st Respondent sometime in 2015 was involved in a case of Affray alongside her daughter Oluwadunsin and she came with these pictures to Ilawe-Ekiti Division then.

It is trite law that any person claiming the

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violation of his or her fundamental Rights must place before the Court all the material evidence regarding the infringement or breach of such right for the claim to succeed. See Fajemirokun v. CB (CI) Nig LTD (2002) 10 NWLR (PT. 744) 95.

The 1st Respondent supported her claim of torture, brutalization, beating etc and graphically illustrated same through paragraphs 15 and 22 of the records and further exhibited Exhibits SA (2a-g) which are pictures. The Appellants raised serious objection to the admissibility of Exhibit SA (2a-g) to the effect that no mention was made of the photographs during the proceeding nor did the 1st respondent say that she took pictures. Nonetheless, those pictures came into the limelight as annexure to the 1st Respondent further affidavit and admitted in evidence in evidence and made Exhibit SA (2a-g). The Appellants must have totally misconceived the procedure under the fundamental Rights which is proved by affidavit evidence different from the pleadings where a foundation must be laid and objection taken before a document can be taken. The law is well settled that documents annexed to affidavits as exhibits already form part of the

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evidence before the Court and as such the issue of laying foundation to its admissibility does not arise. See D.G. DICN & Anor v. Dinwabor & Ors (2016) LPELR – 41316 (CA) Where the court held that:
“The dominant position of the Courts as rightly stated by the Applicants is that copies of public documents attached to an affidavit as exhibits need not be certified copies because the documents already form part of the evidence adduced by the deponent before the Court to use once it is satisfied that they are credible.” – Ojuya v. Nzeogwu (1996) 1 NWLR (PT. 427) 713, Ilorin East L.G V. Alasinrin (2012) LPELR 8400, B.A.T (NIG) LTD V. INT. Tobacco Co. PLC (2013) 2 NWLR (PT. 1339) 493, Jukok Int Ltd v. Diamond Bank PLC (2016) 6 NWLR (Pt. 1507) 55.

The Appellants did not deny the fact of arrest of the 1st Respondent over allegation of complaint of assault made against her by the 2nd and 3rd Respondents the 1st Respondent in her affidavit confirmed that the 2nd – 5th Respondents brought police to arrest her. It is admitted that the Police has the constitutional powers of arrest. See Fajemirokun v. CB (CI) Nigeria Ltd (Supra).

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What is at stake here is not the constitutionality of the powers of the police to effect an arrest of any person reasonably suspected to have committed an offence but not to abuse such power by beating and torturing the 1st Respondent which is a violation of her fundamental rights to human dignity. The powers of the Appellant without any shadow of doubt cannot be used to achieve an unconstitutional result to wit: to infringe the fundamental rights of the 1st Respondent to human dignity. The statutory powers of the police must be done within the ambit of the law otherwise the Court will interfere with the abusive exercise of such powers. See Mrs. Baby Justina Luna v. C.O.P. Rivers State Police Command & Ors (2010) LPELR-8642 (CA) where the Court held thus:
“However notwithstanding the power of the Police as spelt in Section 4 and 24 of the Police Act, where this power is improperly used, the Court can stop the use of the power for that improper purpose, as that would no longer be covered by Section 35(1) (c) of the Constitution. In other words, an order restraining the police from arresting the Police from arresting on some particular improper

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occasion or some particular improper purpose may be made by the Court.”

To prove her case, the 1st Respondent tendered Exhibit SA (2a-g) attached to her affidavit in support and the facts therein and by so doing, established that her right to dignity of human person, right to personal liberty and right to freedom of movement as guaranteed by Section 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6 and 12 of the African Charter of Human and People Rights (Ratification and Enforcement) act were infringed upon by the Appellants. From the records, the Appellant infringed on the 1st Respondents fundamental rights with impunity having arrested her without good reason, detained, chained, tortured and brutalized her based on the report made by the 2nd Respondent.

The 1st Respondent was arrested in her shop by the police and taken to the Police station at Ilawe Ekiti on the 5th day of May, 2016.

It was in evidence at the lower Court that the Appellant chained the 1st Respondents hands and legs without asking her any questions, beat her up and tortured her. She called one of the Police Officers

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on duty popularly called “Chief” and informed him that the allegations against her are not true that she is being detained for no reason without being allowed to say anything.

The said Chief threatened the 1st Respondent that the family that brought her is respected family in Ilawe-Ekiti and put her in the cell and said she would be there for four (4) days before they would conduct investigation. The 1st Respondent’s plea to be allowed to call her daughter to bring her inhaler and drug was refused. Her father pleas made him furious and led to continued beating, slapping and torturing while the 1st Respondent was being chained. The Officer called his colleagues Victor, Catherine, Abiola and one other Police officer and the five of them intensified the beating and torturing of the 1st Respondent. One of the Officers pinned her neck to the wall and hit her head on the louvre blades. The one called Victor used and butt of the gun to hit the 1st Respondent’s head. The 1st Respondent was beaten and tortured almost to the point of death.

It is the evidence of the 1st Respondent that one of her eyes is affected and going bad now due

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to the torture and brutality from the Police officers which has really disfigured her and threatens her entire existence.

The Appellant has contended that the allegations of torture, maiming and indignity to the 1st Respondent borders on crime which proof is that is beyond reasonable doubt and relied on the authority of Nwafornso v. Talbu (1992) 1 NWLR (Pt. 219) 619. Since fundamental rights actions are sui generis, they are all on their own and proof of same is by preponderance of affidavit evidence and no more. See Director State Security Service v. Olisa Agbakoba (1999) NWLR (Pt. 595) 425, Skye Bank PLC V. Njoku & Ors (2016) LPELR-40447 (CA).
In Director SSS V. Olisa Agbakoba (Supra), the Supreme Court held at page 371 thus:
“once a citizen has shown that any of his fundamental rights has been infringed, the burden is on the infringing body or authority or person to establish that the denial of the right was justified by law.”
From the foregoing, I am in agreement with of the Respondent that by the facts contained in the affidavit in support of her application and the exhibits attached thereto, the 1st Respondent has

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established that her right to dignity of human person, right to personal liberty and right to human movement as guaranteed by Section 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6 and 12 of the African Charter of Human and People Rights (Ratification and Enforcement) Act were infringed by the Appellant.
This issue is hereby resolved in favour of the Respondent and against the Appellant.

ISSUE TWO
“Whether the lower Court properly evaluated the evidence before concluding and granting of claims of the 1st Respondent?

The grouse of the Appellant under this issue is that the learned trial judge did not properly evaluate the evidence before him and thereby occasioned a miscarriage of justice. The learned Trial Judge accepted Exhibit SA (2a-g) as a convincing piece of documentary evidence in which the Appellant accused the trial judge of making a case for the Respondent. The trial judge was also accused of closing his eyes on Exhibit CP ‘b’ made by the 1st Respondent, also the re-sworn 4th counter affidavit by the Senior Police Officer on duty that might. In addition

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also is that Exhibit CP’F’ which is to the effect that the 1st respondent once had a case of Affray in 2015, during which 1st Respondent displaced the same set of photographs.
The trial judge was accused of not resolving the above issues.

On the other hand, the Respondent contended that the trial judge properly evaluated the above pieces of evidence. It is not correct as contended by the Appellant that the lower Court closed its eyes to their resworn counter-affidavit and the statement of Ayo Aregbesola as those documents were made in 2016 after having seen Exhibit SA (2a-g) relied by the 1st Respondent to prove her case. It was after the lower Court consideration of the whole evidence that it came to the conclusion that it did not believe that the 1st Respondent was a professional litigant who goes about parading some set of pictures.

It is well settled that evaluation of evidence before the Court is the exclusive prerogative of the lower Court which watched the demeanour of the witnesses in the witness box. By so doing, the Court uses the established criteria of placing it on the imaginary scale and weighing it to find out to

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which side of the scale, the evidence tilts because it is heavier not by the number of witnesses or amount of documents tendered but the probative value of each evidence. See Mogaji v. Odofin (1978) 4 SC 91, Ewulu v. Nwankpu (1991) 8 NWLR (Pt 210) 487, Solola v. State (2005) 5 SC (PT. 1) 135.
In the discharge of its primary duty of evaluating evidence, a trial Court is at liberty to adopt any style and no hard and fast rule could be down to be applied in all cases, as to the manner in which such evaluation must be carried out. See Ayorinde v. Sogunro (2012) 5-7 MJSC 9Pt 111). The fact that a trial Court prefers a piece of evidence or the evidence adduced by one party to that of the other party in making a finding and arriving at a decision, is evidence of proper and dutiful discharge of its primary function of evaluation of evidence on ground of law.
From the foregoing, I am of the considered view that the learned trial judge carefully considered and evaluated the evidence before it reached its decision against the contrary submission of the Appellant. As a result, this Court will not disturb the findings of the trial Court as it is not perverse.

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In Awoyale v. Ogunbiyi (1986) LPELR – 662 (SC), the Court said:
“the basic settled principle for the determination of appeal on issues of fact by an Appellate Court is that where the trial Court has unquestionably evaluated the evidence and appraised the facts, it is no longer the business of the Court of Appeal to embark on a fresh appraisal of such evidence and not only disturb findings of fact by the trial Court, but also to substitute its own views for those of the trial court. See Akinloye & Anor v. Eyiyola & Ors (1968) NMLR 92 at 95, Obisanya v. Nwoko (1974) 6 SC 69 at 80, Victor Woluchem & Ors v. Chief Gudi & Ors (1981) 5 SC 291 at 326-330.
This Court will not disturb the findings of the lower Court as the lower Court properly evaluated same. This issue is therefore resolved in favour of the Respondent.
ISSUE THREE
“Where the 1st Respondent is entitled to the quantum of damages awarded or any other damage at all.”

The Appellant under this issue urged the Court to reverse the quantum of damage awarded because it was made based on scanty evidence, wrong principle of law and

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speculation and hence ought to be disallowed.
In awarding damages for the infringement of the fundamental rights, the Courts are normally guided by the following principles/factors:
(a) The frequency of the type of violation in recent times
(b) The continually depreciating value of the naira
(c) The motivation for violation
(d) The status of the Applicant
(e) The underserved embarrassment meted out to the Applicant including pecuniary losses and
(f) The conduct of the parties generally particularly that of the Respondent. See Ajayi v. A. G. Federation (1998) 373.

In this case, the 1st Respondent was arrested on the 5th day of May, 2016 at about 4.00pm and taken to Ilawe Police Station, Ekiti and detained thereon till 10.00pm without being allowed to say anything nor make a statement. However, her release (1st Respondent) on bail was effected between 9-10pm. The Appellant however denied the above and stated that Exhibit CPB is the Statement of the 1st Respondent in her own hand writing before she was released on bail to return the following morning.​
I do not seem to believe the stand of the Appellant in this case to

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the effect that the 1st Respondent was not tortured, beaten, harassed and brutalized while in the custody at Ilawe Police Station. Exhibit SA (2a-g) buttresses this point even though the Appellant allege that they are fabrications. Even though the Appellant produced the crime diary of 5/5/2016 where a case of Assault was reported by one Agnes Omonijo which was exhibited as Exhibit CPA, yet they were unable to produce any crime diary extract of the alleged incident of 2015.
The Appellants failed to produce any document made in 2015 as alleged where Exhibit SA (2a-g) were incidented or referred to the allegation that one CPL Adaran Ojo investigated a case of Affray involving the 1st Respondent in 2015. Exhibit CPF was annexed to the re-sworn counter-affidavit reveals that the said Exhibit CPF has no mention of any pictures in the Statement not even to talk of Exhibit SA(2a-g). Infact if it were a fact that CPL Adaran Ojo saw Exhibit SA (2a-g) in 2015 as he alleged, one would wonder why Exhibit SA (2A-G) is not in their custody all along or even mentioned anywhere in their records. What I believe in my mind is that Exhibit SA (2a-g) was not made in 2015.

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It is an after thought expression of the Appellant.

From the above, the 1st Respondent has established that her rights have been violated by the actions and/or inactions of the Appellant and therefore entitled to compensatory damages from the Respondent as penalty for the arrest, detention and torture. See Awoyera Sunday v. IGP & Anor (2015) 1 NHRLR 58, Ekpu v. A.G. Federation (Supra) Adetona & Ors v. EFCC & Ors (2017) LPELR- 42369 (CA).
It is settled law that an unlawful arrest and detention, no matter how short entitles the Applicant to compensation. See Arulogun v. C.O.P (1970) ANLR 338, Iwununne v. Egbuchulem & Ors (2016) LPELR -40515 (CA). The law is settled that when a person claims that he has been unlawfully arrested and detained and the fact of arrest and detention is admitted, the burden is on the person who affected the arrest and detention to prove the legality of the arrest and detention. In the instant case, the Appellants admitted the fact that the 1st Respondent was arrested the burden is therefore on the Appellant to prove that the Appellant arrest was lawful. In this case, the Appellants have not proved the lawfulness of

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the arrest.
On damages, the purport of it is to compensate the Claimant for damages for loss or injury suffered as a result of the action or default of the defendant. However, fundamental rights cases are on a higher pedestal than the ordinary civil matter. See Jim-Jaja v. C.O.P., Rivers State (2015) 1 NHRLR (Pt 1) 256 at 272 – 273.
In this case, the 1st Respondent was arrested and detained, suffered pain, embarrassment and indignity by her unlawful arrest, torture, brutalization. Where an Applicant established that her rights have been violated as in this case by the action or inactions of the Appellant, she is entitled to compensatory damages from the Appellant as penalty for the wrong(s). See Fugu v. President (2009-2010) CHR 1 at 20-21. The award of N20, 000, 000 in this case having established a case of breach of the 1st Respondents rights is automatic. When it comes to the award of damages, it is an exercise of discretion of the lower Court and where discretion is validly exercised, an Appellate Court must not lightly interfere with it. In the case of CBN & Ors v. Okojie (2015) LPELR – 24740 (SC), the Supreme Court per

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Rhodes-Vivour JSC held that:
“Damages are awarded at the discretion of the trial judge and so an appeal Court is slow to interfere with how the trial judge exercises his discretion unless;
(a) The exercise is tainted with illegality or substantial irregularity.
(b) If it is in the interest of justice to interfere
(c) The discretion is wrongly exercised. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143, Salu v. Egeibon (1994) 8 NWLR (Pt. 348) 27.
“The discretion of every Court must be exercised judicially and judiciously having regard to the facts and circumstances of the case.”
In view of the above and the peculiar circumstances of this case, I do not have any good reason to interfere or disturb the award of N20,000,000 as damages against the Appellant. The award is affirmed.
This issue is therefore resolved in favour of the Respondent.
All the issues canvassed in this appeal are resolved in favour of the Respondent.
Consequently, the grounds from which they were distilled also fail and hereby dismissed.

The Appeal is unmeritorious and is hereby dismissed. The decision of the lower

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Court in the High Court of Justice, Ikere-Ekiti Judicial Division delivered by Honourable Justice O.I.O Ogunyemi in suit No. HCR/97M/2016 on the 31st day of March, 2017 is hereby affirmed.
Appeal Dismissed.

THERESA NGOLIKA ORJI-ABADUA. J.C.A.: I agree.

FATIMA OMORO AKINBAMI. J.C.A.: I had the privilege of reading in advance, the Judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. He has dealt in great details with all the issues raised in the appeal, and I agree with his reasoning and conclusions in the judgment.

I also dismiss the appeal.

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Appearances:

F.D. Falade Esq. (CSP) O/C legal, Ekiti State Police Command, Ado Ekiti For Appellant(s)

Kayode Oyeyemi Esq. holding brief for A. K. Isola Osobu Esq. for the 1st Respondent.
For Respondent(s)