DANGANA v. A.G. & COMMISSIONER FOR JUSTICE, KADUNA STATE & ANOR
(2022)LCN/16363(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/K/205/2020
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
MRS. AMINA DANGANA APPELANT(S)
And
1) ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, KADUNA STATE 2) COMMISSIONER OF POLICE, KADUNA STATE RESPONDENT(S)
RATIO:
A MERE ALLEGATION OR DEPOSITION ON AN AFFIDAVIT IS NOT SUFFICIENT TO CONSTITUTE PROOF OF INFRINGEMENT
the law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant; the specific facts of the alleged breach must be proved in substantial details and further went ahead to hold that the Appellant has a higher responsibility to prove his declarative reliefs in a fundamental right proceedings. AMINA AUDI WAMBAI, J.C.A.
WHO ASSERTS ANY FACT MUST BEAR THE BURDEN OF PROVING WHAT HE ASSERTS
Now, it is a cardinal principle of our law and I dare say of the divine law that any person who asserts the existence, occurrence, or condition of any fact must bear the burden of proving what he asserts. This has been codified in relation to civil matters in Section 131 (1) & (2) of the Evidence Act, 2011. To entitle the person to judgment of the Court he must not only prove what he asserts but must succeed on the strength of his case not on the weakness of the defendant’s case or upon admission on pleadings. This entrenched principle of law is not a respecter of actions for enforcement of fundament human rights under the FREP Rules, 2009. In other words, an applicant for the enforcement of fundamental right is not exempted from proving his allegation. See A. G. F V. KASHAMU and 11 ORS (2020) 3 NWLR (Pt. 1711) 209. He must satisfy the Court that his case comes within the provision and can seek redress under any of the 3 limbs of Section 46(1). AMINA AUDI WAMBAI, J.C.A.
THE COURT SHOULD RECOURSE TO ORAL EVIDENCE TO RESOLVE A CONFLICT WHEN THERE ARE CONFLICTS IN THE AFFIDAVIT EVIDENCE
On the submission that the learned trial Judge resolved material conflicts in the affidavits, without calling oral evidence, the law generally is that where there are conflicts in the affidavit evidence of contesting parties on fundamental issues in a matter, the Court should have recourse to oral evidence to resolve the conflict. The Court is not permitted to prefer one deposition to the other. See MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTD. V. FIRST BANK PLC. (2001) 9 NWLR (PT. 717) 28. SEE ALSOEIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (supra) cited by the Appellant’s Counsel. However, there are exceptions to this general principle of law. One of such exceptions is where there is/are documentary evidence before the Court from which to resolve the conflict, the oral evidence may be dispensed with. Indeed, it becomes unnecessary and the Court can resolve the material conflict by resorting to the documentary evidence that supports one of the affidavits.
See OLU-IBUKUN V. OLU-IBUKUN (1974) 2 SC 41, U.B.A. PLC. V. OKON EFFIONG (2011) LPELR – 8939,DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (Pt. 968) 544. AMINA AUDI WAMBAI, J.C.A.
THE PARTY MUST ADDUCE CONGENT EVIDENCE BEFORE HE WILL BE ENTITLED TO A DECLATORY RELIEF
Obviously, without sufficient credible and admissible evidence backing up the Appellant’s assertion, it will be difficult, nay legally wrong to grant the declaratory reliefs sought. The law is settled that declaratory relief cannot be granted even upon admission. The party claiming must adduce cogent evidence to show his entitlement to the declaration sought. See the locus clasicus case of BELLO V. EWEKA (SUPRA) also reported as (1981) NSCC (VOL. 12) 48 and KWAJAFFA & ORS. V. BO.N. LTD (2004) 13 NWLR (Pt. 889) 146. AMINA AUDI WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The Appellant, a retired civil servant, instituted suit No. KDH/KAD/689/2019 before Hon. Justice Esther Lolo against the Governor of Kaduna State, the Attorney General and Crown Flour Mills Ltd as 1st, 2nd & 3rd defendants respectively seeking among other declaratory and injunctive reliefs a declaration she is the beneficial owner of a farmland at kilometres 23-24 Kaduna – Abuja expressway, Chikun Local Government Area of Kaduna state measuring about 16.15 hectares of land belonging to her late husband (which has now devolved unto her). Several other farmers equally affected by the takeover of their farmlands also instituted similar suits.
During the pendency of the various suits including suit KDH/KAD/689/2019, the Appellant and the other affected land owners were invited for several meetings at the palace of Sa Gbagyi, all of which were inconclusive. On 23/07/2019 one of the affected land owners, Alhaji Umar M. Farouq and his eldest son Alhaji Abba Umar Farouq, were arrested and detained.
Following this development, the Appellant on 30/08/2019 by a motion on Notice before Hon. Justice D. H. Kbobo, in suit NO: KDH/KAD/574/2019, the subject of this appeal, commenced an action for the enforcement of her fundamental rights pursuant to Order II Rules 2, 3, 4 & 5 of the Fundamental Right (Enforcement Procedure) (Rules,) 2009, (the FREP) Rules, Sections 34(1) (a), 35 (1) &(b) & 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), praying for the following reliefs.
1. A declaration that the continuous invitation of the Applicant by the respondents under the guise of meetings over a purely civil matter pending at the High Court of Kaduna State in suit No. KDH/KAD/689/2019 Mrs. Amina Dangana (nee Amina Bounty Kure) v. the Governor of Kaduna State & 2 Ors. is unconstitutional and constitutes a likely infringement of the Applicant’s Fundamental Human Rights as guaranteed by the 1999 Constitution of the Federal Republic of Nigeria as amended and the African Charter on Human and peoples Right (Ratification Act).
2. A declaration that the continuous invitation of the Applicant by the Respondents under the guise of meeting is putting the applicant in apprehension of the likely contravention of his fundamental human rights pursuant to Section 46(1) of the Constitution of the Federal Republic of Nigeria1999 (as amended).
3. An Order of perpetual injunction restraining the respondents either by themselves or by their agents, or servants from further inviting the Applicant to any purported meeting or invading the privacy of the applicant using policemen or security personnel of government in respect of any or all issues concerning or relating to the dispute between the applicant and the Governor of Kaduna State and 2 others in suit No. KDH/KAD/689/2019, and from further intimidation, and harassment of the Applicant.
4. An Order directing the respondents jointly and severally to pay the applicant the sum of Two Million Naira (2,000,000.00) only each being exemplary/aggravated damages for the infringement of the applicant’s fundamental rights as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 and the African Charter of Human and People’s Rights (Ratification Act).
5. And for such further order(s) as the honourable Court may deem fit to make in the circumstance of this case.
The motion was supported by a statement, a 21 paragraphed affidavit, three annexures marked exhibits A, B & C, an 11 Paragraphed further affidavit and a written address.
The Respondents were granted extension of time to file a counter-affidavit (of 6 paragraphs) and a written address in opposition to the motion. They attached one exhibit marked MOJ I. The learned trial Judge considered the affidavits as well as the exhibits before the Court and found that the Appellants did not prove the alleged threat to violation of her fundamental right to entitle her to the reliefs claimed. He accordingly dismissed the Appellant’s case.
Aggrieved, the Appellant has appealed to this Court vide a Notice of Appeal filed on 21/7/2020 but amended by leave of Court. The amended notice of appeal filed on 22/9/2021 and deemed on 3/11/2021 contains 6 grounds of appeal.
Prof. Agbo J. Madaki who settled the Appellant’s amended brief of argument filed on 01/11/2021 but deemed on 3/11/21 nominated 3 issues for determination thus:
(1) Whether the learned trial Judge of the lower Court was right when he held “in case of allegation of violation of fundamental right, such as the instant case, the law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant; the specific facts of the alleged breach must be proved in substantial details and further went ahead to hold that the Appellant has a higher responsibility to prove his declarative reliefs in a fundamental right proceedings.
(2) Having regard to the facts circumstances of this case leading to this appeal, whether the learned trial Judge of the lower Court was right when he resolved the conflicts in the affidavit evidence in favour of the respondents particularly on the payment of compensation to the Appellant, without calling the parties to address him as the issue of Compensation was not for the trial Court to decide.
(3) Having regards to the provisions of Section 41 & 46 of the 1999 Constitution of the Federal Republic of Nigeria, as amended and Articles 2, 4 & 12 of the African Charter, Human and Peoples Rights, Ratification and Enforcement, whether the Appellant must be arrested or obligated to exhibit an order of Court before he can enforce his rights under the fundamental rights proceedings and obtain the protection of the Court.
The 1st Respondent’s brief of argument was settled by Usman Sani Esq. and filed on 03/11/2021 but deemed on 3/11/2021, Therein, 3 issues were nominated for determination viz:
(1) Whether the learned trial Judge was right when he held that “in cases of allegation of violation of fundamental right, such as the instant case. The law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant; the specific facts of the alleged breach must be proved in substantial details.”?
(2) Whether having regards to the facts and circumstances of this case leading to this appeal, there exist any conflicts in the affidavit filed by both parties, especially in respect to payment of compensation to the Appellant.?
(3) Whether the learned trial Judge was right to have held that the Appellant did not satisfy the legal requirements for proof in matters of declaratory reliefs he asked for?
Abdulfatai Oyedele, Esq. settled the2nd respondent’s brief of argument filed on 01/11/2021 but deemed on 3/11/2021. In it learned Counsel adopted the 3 issues identified by the 1st Respondent.
Looking at the three issues nominated for determination by the learned Appellant’s Counsel, the Appellant’s complaint centres on the holding of the learned trial Judge that mere allegation or deposition in affidavit do not constitute sufficient proof of infringement of fundamental human right under the FREP Rules, 2009, and the resolution of conflicts in the affidavits including the question of compensation, without calling for counsel address or oral evidence. A sole issue encompassing the three issues as crafted below, is in my view, sufficient to determine the appeal. The issue is:-
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE HELD THAT MERE ALLEGATION OR DEPOSITION IN AFFIDAVIT DO NOT CONSTITUTE SUFFICIENT PROOF OF INFRINGEMENT OF FUNDAMENTAL HUMAN RIGHT, AND TO HAVE RESOLVED CONFLICTS IN AFFIDAVITS WITHOUT ORAL EVIDENCE.
APPELLANT’S SUBMISSION
In arguing his issues 1 and 3, the learned counsel, prof Agbo Madaki for the Appellant submitted that fundamental right enforcement proceedings are fought on the basis of affidavit evidence of the parties and the Court look at them to arrive at its conclusion.
In arguing his issues 1 and 3 and contending that the learned trial Judge is wrong to have taken the position that the Appellant needed to have exhibited the written order of arrest by the Governor of Kaduna State or revealed to whom the order was directly given and to have relied on the cases of BELLO VS. EWEKA (sic) (EWEKA) (1981) 1 SC 101, NASCO TOWN PLC V. NWABUEZE (2015) ALL FWLR (Pt. 780) 1209, KODILINYE VS. MBANEFU ODU (1935) 2 WACA 336 at 337 in dismissing his case, the learned professor quoted part of the judgment of the lower Court at pages 92, 94 and 95 of the record and reproduced the provisions of Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that it is neither the requirement of the law that the arrest order be exhibited before an applicant can ventilate her grievances and enforce her right, citing the cases of A. G. F V. KASHAMU and 11 ORS (2020) 3 NWLR (Pt. 1711) 209, THE GOV. OF BORNO STATE & 2 ORS V. GADANGARI (2016) 1 NWLR (Pt.1493) 417, nor does the learned trial Judge’s construction of the provision take cognizance of the 3rd arm of the section which permits an applicant to seek protection against a likely infringement of his/her fundamental human right. Thus, he submitted, the learned trial Judge misunderstood the case of the Appellant. He pointed out that since the responsibility of the 2nd Respondent is to prevent crime and his joinder pre-supposes that the arrest/written order was given to him or his agents, it was wrong for the lower Court to have dismissed the Appellant’s case on ground of absence of the order. That the cases of BELLO VS. EWEKA (supra) and KODILINYE VS. M. ODU (supra) which pertain to declaration of title to land do not apply to enforcement of fundamental right proceedings, stressing that the trial Judge failed to understand that the case of the Appellant was that of likelihood of infringement and not actual infringement and could not have exhibited the order or state the duration of detention, thus failed to consider the Appellant‘s protected right under Section 46 (1). Similarly, the common law principle of award of damages Counsel argued, does not apply to cases under the enforcement of fundamental right proceedings, JIM JAJA VS. C.O.P RIVERS STATE (2013) 6 NWLR (Pt. 1350) 225 at 254.
In arguing his issue No.3 the learned trial Judge was also faulted when in distinguishing the case of Alhaji Umar Farouq from the Appellant’s he stated that while Alhaji Umar Farouq was arrested and detained for denying the receipt of any penny as compensation, the Appellant did not deny the issue of compensation and submitted that the issue of compensation was not only wrongly decided by the lower Court issues having not being joined on same in the suit leading to this appeal, but was also unfairly so decided without giving the Appellant a fair hearing. He submitted that parties are bound by pleadings and that the issue of compensation having been raised suomotu and decided by the learned trial Judge without hearing from parties, same should be set aside, citing the case of OKWAIRAOKA V OFFONZE (2007) ALL FWLR (PT 361)1771, at 1783. He submitted further that assuming the case of Alh. Umar Farouq can be distinguished or is distinct from the Appellant’s, the case of his Son Alh. Abba Umar who was invited for settlement and arrested and detained at the office of the Governor without a Court order, a naked show of abuse of executive power and arbitrariness he described the act, citing the case of Governor of Lagos State & 1 Other V. Ojukwu (1986) 1 NWLR (pt. 18) 621, 636, is not different from that of the Appellant and that it is not the duty of the lower Court to resolve the material conflict in favour of the Respondents. Moreover, the procedure for enforcement of fundamental right was enacted to protect the citizen’s fundamental right from abuse and violation by authorities and persons citing again, the case of JIM JAJA VS. COP. RIVER STATE (SUPRA).
Still on the materially conflicting affidavits which Counsel contends the learned trial Judge resolved without taking oral evidence, reference was made to paragraphs 15 of Appellant’s affidavits where it was deposed that all claimants whose farmland has been compulsorily acquired have been directed by the Governor to be arrested and detained vis a vis paragraph 4 (c) (XV) of the Respondent’s counter-affidavit which denied the Appellant’s deposition and submitted that oral evidence must be led to resolve the conflict except there is a documentary evidence to tilt the scale which is absent in the present case citing the cases of EIMSKIP LTD VS. EXQUISITE INDUSTRIES (NIG) LTD (2003) 4 NWLR (Pt.809) 88 AT 121-122 H-C OKADA AIRLINES LTD VS. F. A. A of NIG. (2015) 1 NWLR (Pt.1439), at 25LAFIA LOCAL GOVERNMENT V. EXECUTIVE GOVERNOR OF NASARAWA STATE (2013) ALL FWLR (PT 668) 156 SC among others. He submitted that the lower Court having resolved the conflict without any form of documentary evidence backing up its decision, the Court descended into the arena of litigation rather than being an impartial umpire in the administration of justice.
1st RESPONDENT’S SUBMISSION
In responding per contra and contending that the learned trial Judge was right in holding that the Appellant did not by credible and verifiable evidence prove his case the burden of proof being on one who asserts, learned Counsel for the 1st Respondent Usman Sani ESQ submitted that the question of infringement of fundamental right is largely a question of fact on affidavit evidence rather than on legal argument such that an applicant must succeed on the strength of his case and not on admission on pleadings or weakness of the defendant, N.P.F AND ORS VS. AHMADU (2020) LPELR – 50317 (CA).
He submitted that the Appellant only made several allegations of likelihood of breach of her fundamental Right without sufficient evidence to prove the specific facts of the alleged breach or events making him to be apprehensive, but the Appellant’s depositions are not sufficient to constitute proof of infringement or infraction of his right. ADESANYA V. FRN AND ANR (1981) LPELR-147 (Pt. 63) D-E,
That contrary to the submission of the Appellant’s counsel which is the crux of his argument that the Appellant needed not to exhibit the written order or to reveal to whom it was given, the Appellant having made a categorical Statement at paragraph 15 of his affidavit that the Governor of Kaduna State gave an order that all claimants whose farmland had been compulsory acquired for Crown Flour Mill LTD be arrested, it is incumbent on the Appellant to support that assertion by documentary evidence or instrument as the Court does not act on mere suspicion but on evidence. AKAYEPE AND ANR V. AKAYEPE(2009), LPELR – 326 (SC). Moreover, he added, the learned trial Judge did not base his decision only on the non-exhibition of the order but gave other reasons and made other findings of facts on material issues before arriving at a logical conclusion but the Appellant’s counsel only chose to pick on the non-exhibition of the order alone. He referred to the finding of fact by the lower Court that the Appellant attended three meetings with the officials of Kaduna State Geographic Information System (KADGIS) at the Sa Gbagyi’s palace after the Appellant’s counsel obtained an interim order from the High Court and contended that if Appellant had been apprehensive, he would not have attended the meetings.
Counsel contended that the events and circumstances leading to the arrest and detention of Alhaji Umar Farouq and his eldest Son Alhaji Abba Umar Farouq upon which the Appellant hinged her application as held by the lower Court, are quite distinct from the Appellant’s application (apprehension) which he argued, has no nexus with the Umar’s arrest. According to him, in the entire affidavit and further affidavit the Appellant never mention that the Respondents were the persons who invited her to the palace of Sa Gbagyi on the three occasions (on the 19th, 20th & 21st August 2019) or that the Respondents were present at the meetings and that the Appellant ought to have been apprehensive of and filed the suit against the Governor of Kaduna State, the Sa Gbagyi or officials of Kaduna Geographic Information System (KADGIS) and not against the Respondents, urging us to discountenance Appellant’s submission at paragraphs 4.6–4.8 of Appellants brief of argument and to hold as misconceived the Appellant’s argument that the case of BELLO V. EWEKA (SIC) (EWEKA) (SUPRA) relied upon by the lower Court are inapplicable since the principle applies equally to the case at hand.
Additionally, he submitted, as the learned trial Judge drew a distinction between the two scenarios the arrest and detention of Alhaji Umar Farouq was pursuant to a Court ordered investigation arising from his (Alh. Umar’s) denial of receipt of any penny as compensation but the same issue never arose in the case of the Appellant before the institution of the suit to justify the apprehension of his arrest thereby making the two cases different.
Learned Counsel contended that the issue of compensation was made in passing only for the purpose of drawing a distinction between the two scenarios of the arrest of Alh. Umar Farouq and the Appellant’s apprehension. More so that the Court did not award compensation to any party, thus, he argued, grounds 4 and 5 of the Notice of appeal did not relate to or arise from the decision of the lower Court and ought to be struck out as well as issue 2 distilled therefrom, the subject matter not being in controversy between the parties and thus therefore incompetent, NWANKWO VS. E. D. C. S. U A. (2005) 5 NWLR (Pt.1027) 377; AT 395 SARAKI V. KOTOYE (1992) 9 NWLR (Pt.264) 156 AT 183, 184; HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (Pt. 326) 252 AT 261, NWACHUKWU V. STATE (2007) 17 NWLR (Pt. 1062) 31 AT 61–62 H–B.
On the Appellant’s contention that the learned trial Judge resolved the materially conflicting depositions in the affidavit particularly on the issue of compensation without calling for oral evidence, learned Usman Sani Esq for the 1st Respondent belied any conflict between paragraph 15 of the Appellant’s affidavit and paragraph 4 (c) (xv) of the Respondent’s counter–affidavit but that assuming there is any such conflict, the Court Order (Exhibit MOJ I) attached to the Respondents’ counter–affidavit is sufficient documentary evidence to resolve the conflict, showing that if there was any arrest and detention of Alh. Umar Farouq, same was ordered by the Court and not by the Governor which evidence was not challenged, EZE CHUKWU AND ANR V. ONWUKA (2016)101 252 LRGN, S2 F-Z, OZAH V. EFCC (2018) ALL FWLR (Pt. 953) 257. E–G. We were urged to resolve the issue in favour of the Respondents.
2ND RESPONDENT’S SUBMISSION.
Learned Counsel for the 2nd Respondent as the 1st Respondent’s Counsel also endorsed the holding of the learned trial Judge that an applicant has to prove his assertion by credible supporting affidavit and exhibits even in cases of actual violation as it is not the law that even in FREP proceedings controverted depositions become facts. He contended that the Appellant did not place sufficient material facts with necessary particulars and ingredients from which the Court could ascertain the likelihood or actual threat of arrest or the breach of the Appellant’s right, stressing that the Court should not believe bare depositions not supported by documents FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD (2009) LPELR–123 (SC), MOKWE V. EZEUKO (2000) 14 NWLR (Pt. 686) 143.
He submitted that a party who seeks Court Order must do all it takes to establish that he deserves such an order NACHPN V. MHWUN (2010) 2 NSCR 101 but that the Appellant failed to discharge the onus.
On the Appellant’s contention that the learned trial Judge was wrong to have required the Appellant to exhibit the arrest order before he can enforce his right, Counsel submitted that there is nothing in the three scenarios or instances in Section 46 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Order 2 Rule 1 of the FREP (Rules) 2009 or any other statute which exempts an applicant from proving his claim of threats to violation of his fundamental right, as mere allegation cannot sustain a suit. That Section 46 (1) only provides for instances that will necessitate the institution of an action for infringement but not how the proceedings are to be conducted or for rule of evidence or that reliefs will be granted without proof, thus he argued, a distinction must be drawn between a genuine likelihood of breach and actual breached from fictitious or suspicious likelihood bordered on speculation. ZABUSKY V. ISRAEL AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070)109 at 133 F-G He therefore submitted that the cases relied upon by the Appellant are not relevant.
On the issue of compensation, the learned Counsel submitted that joinder of issues can be by dissenting positions in affidavits as between paragraph 6 of the Appellants affidavit and paragraphs 4 (C) (iv)–(vi) of Respondent’s counter-affidavit which gives the Court the right to reference the issue of compensation but does not amount to a declaration of rights of the parties on compensation. That it is merely “obiter dictum” through which the Court drew a distinction between Alh. Farouq’s case and that of the Appellant. That the said remark being an obiter is not essential to the decision and not legally binding since no finding of fact was made on the issue of compensation to entitle the Appellant lodge a valid complaint against same. KEHINDE V. ENEH (2017) LPELR–43155 (CA). ISEZUO AND ANR V. SANNI AND ANR (2013) LPELR – 21974 (CA).
It was his submission that the Appellant’s initial claim that it was the Governor who ordered the arrest of Alh. Umar Farouq was rubbished by Exhibit MOJ I and urged the Court to resolve the issue in favour of the Respondents.
RESOLUTION OF APPEAL
The issue thrown up for consideration and determination in this appeal is the correctness or otherwise of the holding of the learned trial Judge that the Appellant did not prove his case of threat to violation of his fundamental right by the Respondents, as alleged. His complaints are that (1) the learned trial Judge was wrong to have held that cases of violation of fundamental human rights are not proved by mere allegation or depositions in affidavit and to have required the Appellant to exhibit the written order of the Governor (2) the learned trial Judge wrongly decided the issue of compensation not placed before it in the suit and (3) the learned trial Judge was wrong to have resolved material conflicts in the affidavit in favour of the Respondents without oral evidence.
I will consider the complaints.
The 1st complaint relates to the position of the lower Court on what constitutes proof of an allegation of infringement of fundamental right (Enforcement Procedure) Rules, 2009. This position of the learned trial Judge in his holding as shown at page 93 of the record reads:
“in cases of allegation of violation of fundamental rights, such as the instant case, the law is settled that mere allegation or deposition on an affidavit is not sufficient to constitute proof of infringement or infraction on the right of the applicant; the specific facts of the alleged breach must be proved in substantial details…”
It is the above holding by the lower Court which is the subject of Appellant’s issue No.1 that has stirred up the storm of Appellant’s agitation.
It is common ground that the Appellant’s application for enforcement of his fundamental right was brought among other provisions, pursuant to Section 46 (1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) and the Fundamental Rights (Enforcement Procedure) Rules, 2009.
Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hereinafter simply referred to as “the constitution”, reads:
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress”.
And by virtue of Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009 (hereinafter simply called the FREP Rules, 2009, any person who alleges that any of the fundamental rights provided for in the Constitution or the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act to which he is entitled has been, is being or likely to be infringed may apply to the Court in the state where the infringement occurs. See IKPE V. EFFIONG (IPO) N.P.F ONNA DIVISION (2014) LPELR – 23036 (CA).
The infringement in the case at hand is alleged to have occurred in Kaduna State, hence the initiation of the action at the lower Court pursuant to the said Rules.
Now, it is a cardinal principle of our law and I dare say of the divine law that any person who asserts the existence, occurrence, or condition of any fact must bear the burden of proving what he asserts. This has been codified in relation to civil matters in Section 131 (1) & (2) of the Evidence Act, 2011. To entitle the person to judgment of the Court he must not only prove what he asserts but must succeed on the strength of his case not on the weakness of the defendant’s case or upon admission on pleadings. This entrenched principle of law is not a respecter of actions for enforcement of fundament human rights under the FREP Rules, 2009. In other words, an applicant for the enforcement of fundamental right is not exempted from proving his allegation. See A. G. F V. KASHAMU and 11 ORS (2020) 3 NWLR (Pt. 1711) 209. He must satisfy the Court that his case comes within the provision and can seek redress under any of the 3 limbs of Section 46(1). That is to say that his fundamental right under Chapter IV of the Constitution has been breached, or is being breached or is likely to be breached by the Respondent. The rule of evidence requiring proof of fact as in civil matters and in thecase of Section 46 (1) of the Constitution, in the manner prescribed by the FREP Rules, 2009, applies with equal force to actions for enforcement of fundamental right. This is so because it is the proof of a fact that takes an assertion out of the realm of a mere allegation to the elevated and coveted realm of evidence capable of being acted upon by the Court. The use of the word “alleges” in Section 46 (1) subjects the substantive constitutional provision creating the right to the adjectival law of evidence through which the right can be enforced. Thus, while Section 46 (1) of the Constitution creates, defines and limits the right of citizens to approach the Court for the enforcement of their rights, the Evidence Act and the specially designed procedure for enforcement, the FREP Rules, 2009, provide the mechanism or manner and the procedure by which the right can be enforced.
By Order xii of the FREP Rules, 2009, application for enforcement of rights are heard and determined by affidavit evidence of the parties and written addresses of Counsel. In other words, this type of application is fought and contested on affidavit evidence. It follows therefore and this is trite, that the backbone or more appropriately the life-wire of Fundamental Right Enforcement application are the combination of the statement, the affidavit in support of the application and the exhibits attached in support of the affidavit (s).
This procedure therefore as is the intendment of the framers of the Rules facilitates the desired speedy but fair determination and disposal of such applications expeditiously bearing in mind the main objectives of the FREP Rules and thus renders the Rules an effective and speedy judicial process for the determination and enforcement of fundamental rights of citizens available under Chapter IV of the Constitution.
However, the point must be clearly made and emphasized that while it is true that in order to give effect to the FREP Rules, 2009 and not to defeat the purpose of Section 46 (1) of the Constitution the standard of proof of an action brought under the Rules should not be elevated to the standard required in criminal trials, the law still remains that to succeed in such an action the applicant must satisfy the Court by credible affidavit evidence that his right has been, is being, or likely to be contravened to entitle him to the relief or protection sought from the Court under the section. Thus, the importance of affidavit evidence in of an action for enforcement of fundamental right cannot be over-emphasized, as it is the affidavit that must set out the facts upon which the application is made. See UWA V. AKPAN AND ANOR(2010) LPELR – 5079.
It is for this reason that Order II Rule 3 enjoins the applicant to support his application with an affidavit which shall set out the facts upon which the application is made. Simply put, the affidavit constitutes the evidence upon which to hinge the application. It follows that the absence of or insufficiency or weakness in the affidavit evidence in support of the application would be fatal in that there would be nothing to support the reliefs claimed. Such application would be liable to a dismissal.
The claim of the Appellant is that his right to approach the Court falls within the 3rd arm of Section 46 (1) of the Constitution. The section has earlier been reproduced. That notwithstanding, for a better appreciation of the discourse here, it is again brought forth.
“Any person who alleges that any of the provisions of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress”
It has 3 segments or parts. These segments are the three stages when a person can approach the Court to seek redress for an infringement or threatened infringement of his fundamental right.
The first segment deals with the actual contravention of the person’s right; when the right has been contravened. In this 1st segment, the act of contravention has already been done. The act constituting the infringement has been successfully and fully completed and there is nothing more on the part of the respondent in the accomplishment of the contravention of the person’s fundamental right. The violator’s act accomplished and the violated goes to Court to seek judicial redress. This is the clearest of all the 3 segments and the easiest in proof.
The second segment deals with when the right is in the process of being contravened, that is, the contravention process has begun though may or may not have been completed. This is not as easy to prove as the first.
The third segment which is the preventive stage and the most difficult to prove provides for a probable futuristic occurrence of the contravention, that is, the “likelihood” of the contravention of the applicant’s right. This 3rd segment affords an applicant the right and opportunity to apply to the Court for the protection of his fundamental right before infringement and the Court the power to avert the violation before it actually takes place. This is the stage of an attempt to breach the fundamental right of another. It involves the doing of overt act or acts with intent to infringe the right of another. Substantial steps must have been taken short of the actual contravention. Thus, before this third limb of the section can be invoked, there must be placed before the Court enough positive acts on the part of the Respondent aimed towards the contravention of the applicant’s right to a very proximate point such that the applicant’s right must be in danger of being violated. The Respondent must have taken substantial steps but the last act that will consummate the actual contravention before an action founded on this segment can succeed. Such acts in the instant case, must unequivocally point towards the arrest and detention of the Appellant short of the actual arrest and detention.
In UZOUKWU AND ORS V. EZEONU II AND ORS (1991) 6 NWLR (Pt. 200)708 at 784, the apex Court stated inter alia:
“before a plaintiff invokes the 3rd limb, he must be sure that there are enough facts on the part of the Respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the Respondent without more, cannot ground an action under the 3rd hint.
See also A.G.F V. KASHAMU (SUPRA).
The Appellant herein relies on his affidavit, further affidavit and exhibit C. Learned counsel cited in particular, paragraphs 14–17 of the affidavit. They are hereunder reproduced.
“14. That Alhaji Umar M. Farouk and his eldest son, Alhaji Abba Umar Farouk were invited for out of Court settlement on 23/7/2019 at Government House Kaduna but were arrested and detained.
15. That all claimants whose farmland have been compulsorily acquired for Crown Flour Mills Ltd have been directed by the Governor of Kaduna State to be arrested and detained including me and our counsel Dr. R. O. Atabo.
16. That pursuant to paragraph 15 ante, Dr. R. O. Atabo had filed an action at the High Court of Justice of Kaduna State and obtained an order of interim injunction against the Respondents. A copy of the Order is attached and marked Exhibit C.
17. That at this juncture, I am apprehensive of the likelihood of the contravention of my fundamental rights as the purported meetings are not making any head way and the continuous invitation puts me at risk of being harassed, intimidated and/or detained by the Respondents.
The above paragraphs particularly 15 & 17 sum up the cause of the Appellant’s apprehension, viz, that all claimants whose farmland have been compulsorily acquired have been directed by the Governor of Kaduna State to be arrested and detained; that the continuous invitation to meetings puts her at the risk of being harassed, intimidated and detained.
But these are not the only relevant depositions. Paragraphs 11–14 add up the sequence of events leading to the depositions in paragraphs 15–17(supra). The summary of depositions at paragraphs 11–13 is that on 19th, 20th and 21st August, 2019, meetings were held on each of the 3 days at the Sa Gbagyi’s palace attended by officials of Kaduna Geographic Information System (KADGIS) and the Appellant. On 23/7/2019 Alh. Umar M. Farouq and his eldest son Alhaji Abba Umar Farouq were invited for out of Court settlement at Government House Kaduna but were arrested and detained (paragraph 14).
On the assertion that the invitation to the meetings and the arrest of Alhaji Umar Farouq gave rise to the Appellant’s apprehension that she would be arrested, it is abundantly clear from the said paragraphs of the affidavit that the facts giving rise to the Appellant’s apprehension of being arrested and having the same fate that befell Alhaji Umar M. Farouq and his son, Alh. Abba U. Farouq are quite different.
Firstly, the meetings to which the Appellant was invited were held at the palace of Sa Gbagy not in the Government House. There is no suggestion that either the 1st or 2nd or both of the Respondents were in attendance at the meetings or that the meetings were held at their instance. At parags 4 (X) of the Respondents counter affidavit, the Respondents deposed they were not even aware of the meetings.
Secondly, the meetings were held between 19th and 21st August, 2019 while Appellant’s Counsel had on 14/08/2019 obtained an interim order of injunction (Exhibit C) restraining the Respondents either by themselves or by their agents or servants from arresting, detaining, inviting the Appellant five days before the meeting of the 19th August 2019. Having obtained the order of interim injunction, the fury of apprehension of arrest or detention no longer existed. On the other hand, if the Appellant was still apprehensive why then did she attend the meetings?
Thirdly, the arrest of Alh. Farouq on the 23/8/2019, (after the meetings attended by the Appellant on 19th–21st August, 2019) was not at the instance of the Respondents or even of the Governor of Kaduna State but was a Court ordered arrest as shown on exhibit MOJ 1 attached to the Respondents’ counter-affidavit. Exhibit MOJ 1 was not been challenged. That fact was not countered by the Appellant. Contrary to the Appellant’s assertion, on the face of Exhibit MOJ, Alhaji M. Farouq was arrested by the order of the Magistrate for the offence of cheating and not on the orders of the Governor.
Furthermore, counsel’s argument at one breadth that the deposition at paragraph 15 that all claimants whose farmland were compulsorily acquired for Crown Flour Mills Ltd were directed to be arrested and detained by the governor is uncontroverted, is a fallacy having regards to paragraph 4 (C) (XV) of the counter affidavit which unequivocally denied the said deposition. It reads
“that the Gov. had never directed that the Appellant or anyone should be arrested”.
It is difficult on the basis of the above analysis to justify the Appellant’s apprehension of likelihood of being arrested without any further evidence to support the claim. The deposition at paragraph 9 of the further affidavit that the fate that befell Alh. Umar Farouq likely awaited her in view of what has been stated above is also a bare deposition that requires further facts or documents to back it up. Similarly, the assertion that the Governor directed the arrest of all claimants including the Appellant has notbeen supported by concrete evidence. The Respondents having denied the allegation and the arrest of Alh. Farouq alleged to have been ordered by the Governor having been belied by Exhibit MOJ I, the Appellant needed to show, beyond the deposition that the Gov. had ordered for their arrest. The learned trial Judge so righty found and held.
On the submission that the learned trial Judge resolved material conflicts in the affidavits, without calling oral evidence, the law generally is that where there are conflicts in the affidavit evidence of contesting parties on fundamental issues in a matter, the Court should have recourse to oral evidence to resolve the conflict. The Court is not permitted to prefer one deposition to the other. See MAY MEDICAL CLINIC AND DIAGNOSTIC CENTRE LTD. V. FIRST BANK PLC. (2001) 9 NWLR (PT. 717) 28. SEE ALSOEIMSKIP LTD V. EXQUISITE INDUSTRIES (NIG) LTD (supra) cited by the Appellant’s Counsel. However, there are exceptions to this general principle of law. One of such exceptions is where there is/are documentary evidence before the Court from which to resolve the conflict, the oral evidence may be dispensed with. Indeed, it becomes unnecessary and the Court can resolve the material conflict by resorting to the documentary evidence that supports one of the affidavits.
See OLU-IBUKUN V. OLU-IBUKUN (1974) 2 SC 41, U.B.A. PLC. V. OKON EFFIONG (2011) LPELR – 8939,DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (Pt. 968) 544.
In the case at hand, the learned trial Judge resorted to MOJ I which supports the Respondents’ case that Alhaji Umar M. Farooq was not arrested by or on the orders of the Governor of Kaduna State but by the order of a Magistrate Court. It was thus not necessary to take oral evidence to resolve the conflicts. Undoubtedly, by Exhibit MOJ 1 the case of Alhaji Umar M. Farooq is distinct from that of the Appellant. It is thus preposterous, as earlier stated, Alhaji U. M. Farooq who per Exhibit MOJ I was arrested for cheating, was on the order of the Governor or that the same fate befall the Appellant.
The fall out of all these is that the involvement of the Respondents in the continuous invitation of the Appellant to the inconclusive meetings which together with the arrest of Alhaji M Farouq the Appellant contends heightened her apprehension of harassment, intimidation and detention by the Respondents, has not been shown nor does the arrest of Alhaji Umar Farouq on a different ground have any nexus with the case of the Appellant. The lower Court was thus right in holding that the events and circumstances leading to the arrest and detention of Alh. Farouq is distinct from the Appellant’s case.
Where then lies the apprehension for the likelihood of the contravention or violation of the Appellant’s fundamental right to justify the grant of his prayers before the lower Court?
It would appear that what is left of the Appellant’s case are mere assertions and speculations. Assertion and suspicion no matter how strong do not constitute evidence. Speculation has no place in our Courts. The Court is not permitted to speculate or act on speculation. The Court only acts on empirical facts provided by parties. See AKAYEPE & ANOR V. AKAYEPE (SUPRA) PLATEAU STATE GOVERNMENT V. A.G.F. (2006) 3 NWLR (Pt. 967) 346.
Breach or likelihood of breach of fundamental right where alleged, must flow from the facts in the affidavit. It is from the facts deposed in the affidavit that the apprehension of likelihood of the breach draws its inspiration.
In the case at hand, from what is left of the affidavits, the Appellant’s apprehension of arrest was not predicated on concrete and solid grounds but on mere speculations which has no place in our Courts. Courts are not allowed to speculate and it will be speculative for this Court to hold that because Alh. Farouq was arrested by the order of Court the Appellant was likely to be arrested on the orders of the Governor.
The Court must confine itself to proved facts and not sail on the ocean of speculation howsoever alluring or attractive the voyage seems. The ship will surely sink into the deep ocean.
Obviously, without sufficient credible and admissible evidence backing up the Appellant’s assertion, it will be difficult, nay legally wrong to grant the declaratory reliefs sought. The law is settled that declaratory relief cannot be granted even upon admission. The party claiming must adduce cogent evidence to show his entitlement to the declaration sought. See the locus clasicus case of BELLO V. EWEKA (SUPRA) also reported as (1981) NSCC (VOL. 12) 48 and KWAJAFFA & ORS. V. BO.N. LTD (2004) 13 NWLR (Pt. 889) 146.
The learned trial Judge was therefore right to hold that Appellant did not prove her case to entitle her to the declaration sought and also in relying on the case of BELLO V. EWEKA (SUPRA) inter alia.
On the complaint that the lower Court decided the issue of compensation which was not placed before the Court, it is contextually not in doubt that the statement on compensation was made in passing for the purpose of distinguishing the case of the Appellant with that of Alhaji Umar M. Farouq relied upon by the Appellant. The Court made no finding of fact on the issue of compensation in relation to the live issue before it. The statement was at best an obiter dictum which has nothing to do with the live issue before the Court. It therefore has no effect on the decision of the lower Court. The mere statement in passing that while Alh. Farouq denied being paid a penny as compensation and the Appellant did not deny payment of compensation does not add to vary or modify the Appellant’s reliefs before the Court which does not directly or indirectly include the question of compensation. It therefore has no effect whatsoever on the judgment of the lower Court.
On the invitation to invoke Section 15 of the Court of Appeal Act, I find no basis for yielding to that invitation the lower Court having rightly decided the case in accordance with the law and the evidence placed before it.
On the whole therefore, the sole issue in this appeal is resolved against the Appellant and in favour of the Respondents.
There is thus no merit in this appeal and it is accordingly dismissed. The judgment of the lower Court delivered on 20th May, 2020 by Hon. Justice D.H. Khobo is affirmed.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother A.A. WAMBAI, JCA. I agree with and adopt as mine the finding and conclusion by my learned brother in the lead judgment that this appeal lacks merit. I also dismiss same and affirm the judgment by the lower Court in Suit No. KDH/KAD/689/2019 delivered on 20/5/2020.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
PROF AGBO J. MADAKI. For Appellant(s)
USMAN SANI, ESQ, – for 1st Respondent
ABDULFATAI OYEDELE, ESQ, – for 2nd Respondent For Respondent(s)