GOV. OF KADUNA STATE & ANOR v. BALLASON
(2022)LCN/16749(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/K/436/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. GOVERNOR OF KADUNA STATE 2. ATTORNEY GENERAL OF KADUNA STATE APPELANT(S)
And
GLORIA MABIEM BALLASON RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A NOTICE OF PRELIMINARY OBJECTION IS FILED BY THE RESPONDENT CHALLENGING THE ACTION
In the case of SADAM & CO. LTD VS. NDIC & ORS (2018) LPELR–46569 (CA), it was held per Wambai, JCA that:
“The law is trite that where a Notice of Preliminary objection is filed by the Respondent challenging an action, it behooves on the Court to first consider and dispose of the preliminary objection. This is so because a successful preliminary objection has the effect of preemptiously terminating the action it has challenged. See Abdul VS CPC & Ors (2014) 1 NWLR (PT. 1388) 299; Magit VS University of Agric, Makurdi & Ors (2005) 19 NWLR (Pt. 959) 211. It matters not whether there is likelihood of success or it is seemingly mere frivolity. What matters is that the Court has a duty to consider it and give its verdict one way or the way for the parties to know their fate, for it would amount to unfair hearing to ignore the application. See Nwanwata VS Esumei (1998) 8 NWLR (Pt. 563) 650. I shall therefore first consider the preliminary objection.” PER IDRIS, J.C.A.
WHETHER OR NOT FILING A REPLY BRIEF OF ARGUMENT IS MANDATORY
The Supreme Court, in the case of MATHEW VS. STATE (2019) LPELR–46930 (SC) held that:
“Ordinarily, the filing of a reply brief of argument is not mandatory in the sense of being compulsory. But where a respondent’s brief of argument raises issues or points of law not covered in the appellant’s brief, then an appellant ought to file a reply brief of argument in the best interest of his case.”
See also the case of POPOOLA VS. ADEYEMO (1992) 3 NWLR (PT. 284) 748.
In ALIYU SALIHU VS. ALHAJI A. WASIU (2016) 8 SCM 180; (2016) LPELR–26062, this Court reiterated that a reply brief is to be filed only in response to a new argument of the Respondent on law that has newly been raised by the Respondent but was not covered by the Appellant in his brief of argument. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court. A reply brief is said not to be a repair kit to put right any lacuna in an Appellant’s brief of argument. See also DR. AUGUSTINE N. MOZIE & ORS VS. CHIKE MBAMALU & ORS (2006) 12 SCM (PT. 1) 306 AT 320 and OSUJI VS. EKEOCHA (2009) 10 SCM 72 AT 85; (2009) 16 NWLR (PT. 1166) 81.
In this instant appeal, the Appellants failed to indicate clearly on the face of the Appellants’ brief of argument the grounds of appeal from which the issues for determination were distilled from. However, they went ahead to indicate it in their reply brief.
It is trite law that the filing of the Appellants’ brief no matter how faulty it is, does indicate a willingness and readiness on the part of the Appellants to prosecute their appeal. Therefore, this Court cannot close its eyes to the fact of its existence. See NWAOHA VS. C. O. P. (2018) 10 NWLR (PT. 1628) 568.
Even though it is necessary for an Appellant to clearly indicate the grounds of appeal from which the issues for determination were distilled from, failure to do so does not automatically mean that the issues are liable to be struck out for incompetence when upon a closer look, it is obvious that the issues for determination are related and tied to the grounds of appeal raised. This can be laborious for the justices to start reading and seeing the link however, since the Appellants in this instant appeal have taken it upon themselves to indicate same in their reply brief, it would be unfair and unjust to turn a blind eye to this. This is a Court of justice and the law allows justices to exercise their discretion judicially and judiciously, applying wisdom and common sense when necessary. PER IDRIS, J.C.A.
THE DUTY OF THE COURT WHEN EVALUATING THE EVIDENCE OF PARTIES BEFORE IT
A Court in evaluating evidence must take into consideration every little aspect of the facts placed before it and the surrounding factors. The Judge must be thorough and is not allowed to accept the evidence brought before him without weighing its preponderance and probability. See AJAGBE VS. IDOWU (2011) LPELR–279. The law is settled that civil suits are determined on preponderance of evidence and balance of probability and therefore Courts should always give consideration to the overall evidence placed before them and the claim as a whole. PER IDRIS, J.C.A.
WHETHER OR NOT FUNDAMENTAL RIGHT ENFORCEMENT PROCEEDINGS ARE THE SAME AS THE USUAL CIVIL PROCEEDINGS
Fundamental right enforcement proceedings are sui generis and decided solely and only on affidavit evidence. In other words, viva voce or oral evidence and the other practices regarding the use of affidavit evidence in civil proceedings are alien to fundamental right enforcement proceedings. It is the affidavit evidence placed before the Court that the Court must thoroughly evaluate in order to determine the application before it. It is the facts averred in the affidavits placed before the Court by the parties in a fundamental rights enforcement proceeding that constitute the pleadings. See JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) LPELR–1587 (SC).
In the case of IKUDAYISI & ORS VS. OYINGBO & ORS (2015) LPELR–40525, this Court per Abiriyi, JCA on this issue stated as follows:
“The special procedure of the Fundamental Rights (Enforcement Procedure) Rules is not to be equated with the normal procedure in actions tried on pleadings and to which normal rules of pleadings apply. In the procedure under the Fundamental Rights (Enforcement Procedure) Rules, the affidavits constitute the evidence. If the only evidence before the Court or Judge is that of the complainant, that is the material he should consider in order to determine the entitlement of the complainant. The other party is not compelled to file any affidavit.
However, notwithstanding that the other party has not filed any affidavit that other party can still be heard on the application to contend that the facts disclosed by the complainant’s affidavit do not point to the existence of a right or of an infringement of any right. See AGBAKOBA V. DIRECTOR S.S.S. (1994) 6 NWLR (PT. 351) 475 AT 500.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an Amended Originating Motion dated the 22nd day of March, 2017, the Respondent brought an action against the 1st and 2nd Appellants before the High Court of Kaduna State, seeking for the following reliefs:
(1) A DECLARATION that the Applicant being a citizen of the Federal Republic of Nigeria is entitled to the protection of her fundamental rights to life, dignity of human person, personal liberty, freedom of expression and freedom of movement as provided by Section 33(1), 34, 35, 39 and 41 of the 1999 Constitution.
(2) A DECLARATION that it is wrong in law and a brazen violation of the Applicant’s fundamental right to freedom of expression and of the press as provided by Section 39 of the 1999 Constitution for the 1st Respondent to influence, initiate or order the arrest, detention or prosecution of the Applicant for the publication of an article in the Blue Print Newspaper which did not in anyway instigate or cause any violence in Kaduna State or in any part of Nigeria.
(3) A DECLARATION that the open rebuke and threat issued by the 1st Respondent to the Applicant which has made the Applicant apprehensive and kept her in a state of fear for her life is a direct breach of Section 33 of the 1999 Constitution and also a violation of her right to personal dignity as provided by Section 34 of the 1999 Constitution.
(4) A DECLARATION that the threats issued by the 1st Respondent to the effect that the Applicant will be arrested, prosecuted and jailed for an article she wrote in the Blue Print Newspaper on 28th November, 2016 and for her advocacy activities on radio is a breach of the Applicant’s fundamental rights to dignity and right to freedom of expression and the press as provided in Section 34 and 39 of the 1999 Constitution.
(5) A DECLARATION that the intention manifested by the 1st Respondent to arrest, prosecute and jail the Applicant through the 2nd Respondent on trumped-up charges for simply expressing her opinion in the print media and anchoring a legal programme on Radio is a breach of the Applicant’s right to freely express herself as enshrined in Section 39 of the 1999 Constitution,
(6) AN ORDER restraining the 1st Respondent either by himself, agents, privies or assigns from causing the arrest, detention or influencing the arrest or prosecution of the Applicant for publishing an article in the Blue Print Newspaper as a law columnist as such an order is a violation of Sections 34, 35, 39 and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
(7) AN INJUNCTION restraining the 2nd Respondent from acting on any Executive memo, advice and/or directive whether written or oral from the 1st Respondent to prosecute the Applicant for the publication of the article in the Blue Print Newspaper as a law columnist which did not violate any law or caused any violence in Kaduna State or any part of Nigeria.
(8) AN ORDER that it will be a clear violation of Sections 34, 35, 39 and 41 of the 1999 Constitution for the 2nd Respondent cannot in law cause or authorize the prosecution of the Applicant for the publication of the article in the Blue Print Newspaper attached thereto as Exhibit 1 which article did not instigate any violence or caused any breach of the peace in Kaduna State.
(9) Cost of this suit.
(10) Damages in sum of N50,000,000 (Fifty Million Naira) only for the blatant breach of the Applicant’s fundamental rights to human dignity and freedom of the press as provided by Section 34 and 39 of the 1999 Constitution.
In the affidavit attached to the Originating Motion, the Respondent had stated that she is a legal practitioner, a civil rights activist and a law columnist at the Blue Print Newspaper.
She further stated that on the 28th day of November, 2016, she caused an article to be published in the Blue Print Newspaper, calling on the Government of Kaduna State to address the issues arising in the State to prevent anarchy and breakdown of law and order.
However, despite writing the story in good faith according to her, she has received several threats from the 1st Appellant both directly and indirectly. She further stated that the 1st Appellant had threatened to prosecute her for all the deaths that has occurred in Kaduna State in the presence of over a hundred people and on television without taking into cognizance of her rights as a citizen of Nigeria. She also claimed to be in fear for her life as she has reliably been informed that the 1st Appellant has directed the 2nd Appellant to cause her arraignment on trumped up charges so that she could be remanded in prison. Finally, she deposed that the conduct, utterances and actions of the Appellants into the amended originating motion, constitute a breach of her fundamental right to expression, the press, personal liberty and dignity of human person.
The 1st and 2nd Appellants filed their counter-affidavit to the Originating Motion dated the 30th day of March, 2017, denying all the depositions of the Respondent. It was deposed that they (Appellants) never threatened the Respondent and neither did the 1st Appellant direct the 2nd Appellant to arrest the Respondent. It was also stated that the rights of the Respondent had not been breached in any way for her to be entitled to the grant of the reliefs sought and damages demanded.
While delivering judgment, the learned trial Judge held that he was satisfied that the Respondent had placed before the Court sufficient materials to prove that her fundamental rights to which she was entitled was likely to be infringed upon. The learned Judge further held that the open rebuke of the 1st Appellant was a violation of the Respondent’s fundamental rights and thus, the 1st and 2nd Appellants were restrained from causing the arrest, detention and prosecution of the Respondent in respect of the publication. The cost of the suit was assessed at N10,000 and no damage was awarded.
Dissatisfied with the judgment of the trial Court below, the 1st and 2nd Appellants filed a Notice of Appeal dated the 28th day of June 2017, comprising of 6 (six) grounds of appeal.
The 1st and 2nd Appellants filed their joint brief of argument which was deemed properly filed on the 19th day of January, 2021 and settled by their counsel Chris A. Umar Esq. In the said brief of argument, 2 (two) issues for determination were distilled as follows:
(1) Whether based on the evidence adduced in the matter, the subject matter of this appeal, the lower Court was right in holding that the Respondent’s Fundamental rights had been violated by the Appellants?
(2) Whether the lower Court was right in prematurely vesting in Respondent’s fundamental rights enforcement application, the exclusive character of a sword to ward off the proper exercise of the constitutional powers of the Appellants and other relevant institutions of State?
On issue one, the 1st and 2nd Appellants’ counsel submitted that it is trite law that he who alleges that any of his fundamental rights has been or is likely to be infringed upon may apply to a High Court for redress. The onus is on the Applicant to prove the actual or impending infringement. Reference was made to the case of FAJEMIROKUN VS. COMMERCIAL BANK NIG. LTD & ANOR (2009) LPELR–SC 336/2002.
It was argued that assuming without conceding that the 1st Appellant threatened the Respondent, the Respondent failed to lead or depose to any evidence to support such allegation and also that the Respondent did not file a further affidavit when the Appellants had denied ever threatening her in their counter-affidavit. Reference was made to the cases of ADEKUNLE VS. A.G. OF OGUN STATE (2014) LPELR 22569 and MR PETER OKOCHA & ANOR VS. INEC & 3 ORS (2010) LPELR 4719 (CA).
It was submitted that since most of the reliefs sought in the application were declaratory, the Respondent’s application can be rightfully said to have failed to meet the requirement of proof of the alleged breaches of her fundamental rights by the Appellants. The case of BELLO VS. EWEKA (1981) 1 SC 101 was cited in support.
It was then submitted that the trial Court failed to evaluate evidence from the facts placed before it. Reliance was placed on the case of MOGAJI & ORS VS. ODOFIN & ORS (1978) 3 S.C. 91 AT 95.
On issue two, the Appellants have submitted that it was wrong for the trial Court to grant the application before it in part since the Respondent did not prove her depositions. It was argued that assuming without conceding that the 1st Appellant found the Respondent’s publication capable of inciting public peace, the law empowers the 1st Appellant to refer the matter to the law enforcement agencies for investigation and prosecution. Thus, the law robs the trial Court of the power to consider and interpret the said publication in a fundamental rights enforcement application which is sui generis and distinct from any criminal matter that may be involved in the said publication.
It was finally submitted that by restraining the Appellants from arresting and prosecuting the Respondent, the lower Court acted in excess of the judicial powers vested in it by Section 6 of the 1999 Constitution. The judgment of the trial Court below was said to be ultra vires the provisions of Section 45 of the 1999 CFRN as it demonstrates a flagrant disregard for the said Section which states that fundamental rights are not in any way limited.
The Respondent on the other hand filed her brief of argument dated the 19th day of July, 2021 and settled by her counsel A. N. Amaechi Esq.
The Respondent also filed a Notice of Preliminary Objection against the instant appeal, urging this Court to strike out the appeal in its entirety.
The Respondent has objected to issues one and two of the Joint Appellants’ brief of argument on the grounds of non-conformity with the principles and procedures relating to writing of briefs.
It was argued that as a general rule, issues for determination formulated in a brief of argument must be based on a particular ground or grounds of appeal and where such issue is not linked or tied to any ground of appeal, it becomes incompetent and liable to be struck out. Reference was made to the cases of CHAMI VS. UBA PLC (2010) LPELR–841 and AMADI VS. NNPC (2000) 6 SC PART 1 PAGE 66 AT 172.
The Respondent’s counsel has argued that no competent issue is contained in the Appellant’s brief of argument and thus, it is liable to be struck out.
In the said Respondent’s brief of argument, the following 2 (two) issues for determination were distilled as thus:
(a) Whether based on the evidence adduced in the matter, the subject of this appeal, the lower Court was not right in holding that the Respondent’s Fundamental rights had been violated by the Appellants? (Distilled from Ground 1 and Misdirection 2 & 3)
(b) Whether the lower Court prematurely vested the Respondent’s fundamental rights enforcement application, the exclusive character of a sword to ward off the proper exercise of the constitutional powers of Appellants and other relevant institutions of state?
On issue one, learned counsel to the Respondent submitted that the standard of proof in an action for breach of fundamental right is on the balance of probability or the preponderance of evidence. On this point, counsel cited the case of AROWOLO VS. OLOWOKERE (2012) ALL FWLR (PT. 606) PAGE 398.
It was submitted that the Respondent was able to prove satisfactorily before the Court that she was indeed threatened by the 1st Appellant and that the trial Court was right in holding that any stern statement from the 1st Appellant to someone like the Respondent would create fear.
The Respondent’s counsel also argued that the Appellants failed to lead credible evidence to prove that the allegations against them were false and that they merely denied and made some hearsay evidence.
Also, the Respondent’s counsel had argued that the deponent to the counter affidavit was not in a position to depose to same and as such the said counter affidavit amounted to hearsay evidence. The Respondent also argued that the counter affidavit filed by the Appellants was self-contradictory.
On issue two, the Respondent argued that Section 46 of the 1999 CFRN clearly caters for situations where a citizen alleges that his/her right has been breached. An affirmation of this provision by a Court of law is by no means vesting a citizen with a sword to ward off the proper exercise of the State but a shield against oppressive acts.
The Respondent’s counsel further submitted that Section 6(6) of the Constitution is quite clear that the judicial powers extend to all matters between persons or between government or authority and to any person in Nigeria. Reliance was placed on the case of SPDC VS. ANARO & ORS (2015) LPELR 24750 (SC). It was further submitted that the Court is clearly empowered to inquire into questions and that the exercise of such powers cannot in any way be branded as flouting the principles of separation of powers.
The Respondent also submitted that the Appellants’ submission that the trial Judge could not consider the innocuous nature of Exhibit 1 as the case before it was a fundamental rights application was far from the truth. It was argued that it was material for the trial Court to determine whether the content of Exhibit 1 could incite violence and break down of law and order. It was submitted that a proper evaluation of evidence is absolutely important in order to determine a case and come to a just conclusion. Reference was made to the case of ADELEKE VS. IYANDA (2001) 13 NWLR (PT. 729) PAGE 1.
This Court was urged to jettison the restrictive interpretation of the powers of the Court as proffered by the Appellants and also resolve this issue in favour of the Respondent.
Finally, the learned counsel for the Respondent also argued that it is fundamental to note that the lower Court in its judgment agreed with the Respondent that the 1st Appellant by virtue of the powers and influence he wields indeed breached the Respondent’s right by his statements, and that it was however imperative to note that the Appellants did not appeal against the fundamental findings and that they are deemed to have accepted same. Reference was made to the case of TUKUR VS. GOVERNOR OF TARABA STATE (1997) LPELR–2746.
It was also argued that consequent upon the findings of the lower Court, damages for the violation should have naturally followed. The case of JIM-JAJA VS. COP RIVERS STATE (2013) 22 WRN 39 AND 56 was cited in support.
The Respondent’s counsel then urged this Court to invoke Section 15 of the Court of Appeal Act 2004 and award damages which the lower Court should have in consequence, awarded the Respondent and also to dismiss the appeal.
The Appellants filed their Reply brief deemed to be properly filed 25th of April, 2022 and settled by E.K Bakam Esq. The Appellants went ahead and distilled 2 (two) issues for determination from the Notice of Preliminary Objection filed by the Respondent as follows:
(1) Whether Respondent’s objection is competent, regard been had to Order 10 Rules 1 and 3 of the Court of Appeal Rules 2011?
(2) Whether the issues for determination in Appellants’ joint brief of argument were not distilled or drawn from the grounds of appeal in this appeal, as to render the instant appeal incompetent?
The learned counsel for the Appellants submitted that the Notice of Preliminary Objection filed by the Respondent is incompetent as it failed to comply with Order 10 Rules 1 and 3 of the Court of Appeal Rules 2021 which states that in order to successfully rely upon a preliminary objection to the hearing of this appeal, the Respondent ought to within the same time, file a Notice of Respondent’s objection together with 10 hard copies and an electronic copy. The Appellants’ counsel has argued that the Respondent failed to comply with this and this Court was urged to discountenance the said preliminary objection.
Secondly, the Appellants’ counsel has argued that it is trite that issues for determination in a Brief of Argument must be based on a particular ground or grounds of appeal. Reliance was placed on CHAMI VS. UBA (2010) LPELR–841 PAGE 3–4 PARAS E–A.
It was argued that the issues for determination have direct bearing on the appeal and clearly project the substance of the complaint in the grounds of appeal. The case of AMOBI VS. NZEGWU & ORS (2013) LPELR 21863 was cited in support.
The Appellants’ counsel went ahead and submitted that the issue one of their issue for determination was distilled from Grounds 1, 2, 3 and 7 of the Grounds of Appeal. Also, it was submitted that the second issue for determination was distilled from Grounds 4, 5 and 6 of Appellants’ Grounds of Appeal.
It was then submitted that the Appellants’ joint brief of argument satisfies the description of an ideal brief and this Court was urged to allow the appeal.
RESOLUTION OF ISSUES
Having read through the respective briefs of argument filed by counsel for the parties in this instant appeal, it is clear that there are many areas of disagreement arising from the briefs filed. I have seen the arguments canvassed by each counsel and I will proceed to determine same one after the other.
The Respondent has filed a Notice of Preliminary Objection, stating that the Appellants clearly failed to indicate the grounds of appeal from where each issue for determination was distilled from. The Appellants’ counsel however went ahead to argue that the Respondent failed to file a separate notice of Respondent’s objection thus, failing to comply with Order 10 Rules 1 and 3 of the Court of Appeal Rules 2021. It is the Appellants’ counsel’s argument that the preliminary objection should not be considered as a result of this.
I have read through the processes filed in this instant appeal and indeed I cannot see the separate Notice of Preliminary Objection filed by the Respondent before she went ahead to raise and argue same in her Respondent’s brief of argument.
Is the Notice of Preliminary Objection contained in the Respondent’s brief of argument proper before this Court?
Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2021 provides that:
“(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice, before the hearing, setting out the grounds of the objection and shall file such notice together with 10 hard physical copies and an electronic copy thereof with the registry within the same time. The preliminary objection shall be argued in the Respondent’s brief of argument.
(3) Where the Respondent fails to comply with this order, the Court may refuse to entertain the objection, or may adjourn the hearing thereof at the cost of the Respondent or may make sure other orders as it thinks fit.”
Even though Rules of Court are there to guide and must be followed, it is clear that this rule is not mandatory as there is room for the Court to exercise its discretion. The failure of the Respondent to comply with the said order does not render the preliminary objection defective and incompetent.
In the case of SADAM & CO. LTD VS. NDIC & ORS (2018) LPELR–46569 (CA), it was held per Wambai, JCA that:
“The law is trite that where a Notice of Preliminary objection is filed by the Respondent challenging an action, it behooves on the Court to first consider and dispose of the preliminary objection. This is so because a successful preliminary objection has the effect of preemptiously terminating the action it has challenged. See Abdul VS CPC & Ors (2014) 1 NWLR (PT. 1388) 299; Magit VS University of Agric, Makurdi & Ors (2005) 19 NWLR (Pt. 959) 211. It matters not whether there is likelihood of success or it is seemingly mere frivolity. What matters is that the Court has a duty to consider it and give its verdict one way or the way for the parties to know their fate, for it would amount to unfair hearing to ignore the application. See Nwanwata VS Esumei (1998) 8 NWLR (Pt. 563) 650. I shall therefore first consider the preliminary objection.”
Therefore, I shall go ahead and determine the preliminary objection.
I have looked at the Appellants’ Brief of Argument and it is clear that the Appellants failed to indicate the grounds of appeal from which their issues for determination were distilled from. However, they have gone ahead to state the grounds of appeal from which the issues for determination were distilled from in their reply brief. Can the Appellants go ahead to do this in their reply brief as they have done?
The Supreme Court, in the case of MATHEW VS. STATE (2019) LPELR–46930 (SC) held that:
“Ordinarily, the filing of a reply brief of argument is not mandatory in the sense of being compulsory. But where a respondent’s brief of argument raises issues or points of law not covered in the appellant’s brief, then an appellant ought to file a reply brief of argument in the best interest of his case.”
See also the case of POPOOLA VS. ADEYEMO (1992) 3 NWLR (PT. 284) 748.
In ALIYU SALIHU VS. ALHAJI A. WASIU (2016) 8 SCM 180; (2016) LPELR–26062, this Court reiterated that a reply brief is to be filed only in response to a new argument of the Respondent on law that has newly been raised by the Respondent but was not covered by the Appellant in his brief of argument. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court. A reply brief is said not to be a repair kit to put right any lacuna in an Appellant’s brief of argument. See also DR. AUGUSTINE N. MOZIE & ORS VS. CHIKE MBAMALU & ORS (2006) 12 SCM (PT. 1) 306 AT 320 and OSUJI VS. EKEOCHA (2009) 10 SCM 72 AT 85; (2009) 16 NWLR (PT. 1166) 81.
In this instant appeal, the Appellants failed to indicate clearly on the face of the Appellants’ brief of argument the grounds of appeal from which the issues for determination were distilled from. However, they went ahead to indicate it in their reply brief.
It is trite law that the filing of the Appellants’ brief no matter how faulty it is, does indicate a willingness and readiness on the part of the Appellants to prosecute their appeal. Therefore, this Court cannot close its eyes to the fact of its existence. See NWAOHA VS. C. O. P. (2018) 10 NWLR (PT. 1628) 568.
Even though it is necessary for an Appellant to clearly indicate the grounds of appeal from which the issues for determination were distilled from, failure to do so does not automatically mean that the issues are liable to be struck out for incompetence when upon a closer look, it is obvious that the issues for determination are related and tied to the grounds of appeal raised. This can be laborious for the justices to start reading and seeing the link however, since the Appellants in this instant appeal have taken it upon themselves to indicate same in their reply brief, it would be unfair and unjust to turn a blind eye to this. This is a Court of justice and the law allows justices to exercise their discretion judicially and judiciously, applying wisdom and common sense when necessary.
The question of issues for determination and their relationship with the grounds of appeal is a matter of practice and procedure which go only to regularity and are no grounds for nullity as long as it is clear on the face of it that there is a link between the issues for determination and the grounds of appeal.
On this note, I hereby dismiss the Notice of Preliminary Objection filed by the Respondent.
In resolving the main appeal, I shall adopt the issues for determination raised by the Appellants herein. The said issues are again reproduced hereunder as follows:
(1) Whether based on the evidence adduced in the matter, the subject matter of this appeal, the lower Court was right in holding that the Respondent’s Fundamental rights had been violated by the Appellants?
(2) Whether the lower Court was right in prematurely vesting in Respondent’s fundamental rights enforcement application, the exclusive character of a sword to ward off the proper exercise of the constitutional powers of the Appellants and other relevant institutions of State?
ISSUE ONE
Whether based on the evidence adduced in the matter, the subject matter of this appeal, the lower Court was right in holding that the Respondent’s Fundamental rights had been violated by the Appellants?
A Court in evaluating evidence must take into consideration every little aspect of the facts placed before it and the surrounding factors. The Judge must be thorough and is not allowed to accept the evidence brought before him without weighing its preponderance and probability. See AJAGBE VS. IDOWU (2011) LPELR–279. The law is settled that civil suits are determined on preponderance of evidence and balance of probability and therefore Courts should always give consideration to the overall evidence placed before them and the claim as a whole.
Fundamental right enforcement proceedings are sui generis and decided solely and only on affidavit evidence. In other words, viva voce or oral evidence and the other practices regarding the use of affidavit evidence in civil proceedings are alien to fundamental right enforcement proceedings. It is the affidavit evidence placed before the Court that the Court must thoroughly evaluate in order to determine the application before it. It is the facts averred in the affidavits placed before the Court by the parties in a fundamental rights enforcement proceeding that constitute the pleadings. See JACK VS. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) LPELR–1587 (SC).
In the case of IKUDAYISI & ORS VS. OYINGBO & ORS (2015) LPELR–40525, this Court per Abiriyi, JCA on this issue stated as follows:
“The special procedure of the Fundamental Rights (Enforcement Procedure) Rules is not to be equated with the normal procedure in actions tried on pleadings and to which normal rules of pleadings apply. In the procedure under the Fundamental Rights (Enforcement Procedure) Rules, the affidavits constitute the evidence. If the only evidence before the Court or Judge is that of the complainant, that is the material he should consider in order to determine the entitlement of the complainant. The other party is not compelled to file any affidavit.
However, notwithstanding that the other party has not filed any affidavit that other party can still be heard on the application to contend that the facts disclosed by the complainant’s affidavit do not point to the existence of a right or of an infringement of any right. See AGBAKOBA V. DIRECTOR S.S.S. (1994) 6 NWLR (PT. 351) 475 AT 500.”
First and foremost, I must critically analyze the averments in the verifying affidavit filed by the Respondent in support of the application. Reading through, I can see that the Respondent introduced herself, her position and profession and how she wrote an article on page 30 of the Blue Print Newspaper on the 28th of November, 2016. She also stated that upon the publication of the article, she has received several threats from the Executive Governor of Kaduna State both directly and indirectly. The Respondent further deposed to the fact that one of such threats was made on the 17th day of January, 2017 when she and some members of the Nigerian Bar Association paid a courtesy visit to the Governor of Kaduna State. She also said that the 1st Appellant had insulted her in the presence of everyone and had said that she was being monitored by the Government. The Respondent also stated that the 1st Appellant made further threats to the hearing of over 100 people that she was being monitored. Also, that she received information that the 1st Appellant had directed the 2nd Appellant to cause “my arraignment on trumped up charges so that I could be remanded in prison in order to shut me up and gag and also discourage my advocacy work. The 2nd Appellant being an employee of the 1st Appellant who holds his appointment at his pleasure will certainly comply with the directive except stopped by this Court.”
I have read through the verifying affidavit and even summarized same. I do not see how the Appellants have threatened to infringe the fundamental rights of the Respondent. The Respondent kept saying she got “threats” from the 1st Appellant yet she did not bother to quote the threats verbatim so that the 1st Appellant will be given the opportunity to either admit or deny same.
What were the words said by the 1st Appellant to the Respondent? What qualified those words as threats? Who determines what a threat is? Why did the Respondent fail to state the said threat so that the trial Court and this Court can properly look at same so as to agree or disagree if they amount to threats?
Also, the Respondent failed to state the source of her information. I do not see the basis upon which the trial Court was able to hold that “I am satisfied that the Applicant has placed before this Court sufficient material in proof that her Fundamental rights… are likely to be infringed.”
Section 115 of the Evidence Act 2011 provides:
115.
(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in all matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information. The verifying affidavit accompanying an originating motion in an application for the enforcement of fundamental rights must comply with the provisions of the Evidence Act 2011.
Focusing on paragraphs 11, 12, 14, 15, 16, 17, 18 and 19 of the said affidavit, the Respondent went ahead to state that the 1st Appellant had threatened her in the presence of many and has even threatened to arrest and prosecute her. She however did not bother to state the words or even phrases used by the 1st Appellant which she has concluded to be threats. Out of the hundreds of people she claimed were present when the threats were made, not one could file an affidavit to confirm that indeed certain threats were made against the Respondent.
The Respondent even said that she “received information that the 1st Respondent has directed the 2nd Respondent to cause my arraignment on trumped up charges so that I could be remanded in prison in order to shut me up and gag me and also discourage my advocacy work…” Information from who? Who is the informant and how was this information received? What were the “trumped up charges”? How did the Respondent arrive at the conclusion that the Appellants intended to shut her up, gag her and discourage her advocacy work?
This paragraph 18 of the verifying affidavit offends the provisions of Section 115 of the Evidence Act 2011 which provides that affidavits should not contain conclusions and also, information obtained from another source must be explicitly stated, the name and particulars of the informant must be provided and the information must be in details.
Yes I understand that it is absolutely normal for the Respondent to panic and be scared of the Appellants because of the positions and power they possess and control, however, the Respondent being a lawyer herself ought to know that the Courts are saddled with the primary responsibility of determining cases based on facts and not on assumptions, speculations and sentiments.
The Respondent failed woefully in furnishing before the trial Court sufficient materials and facts in proof of her case against the Appellants.
Issue one is therefore hereby resolved in favour of the Appellants.
ISSUE TWO
Whether the lower Court was right in prematurely vesting in Respondent’s fundamental rights enforcement application, the exclusive character of a sword to ward off the proper exercise of the constitutional powers of the Appellants and other relevant institutions of State?
I have read the contents of Exhibit A but I will not make any pronouncement as to whether it is capable of inciting violence or if it is a mere article written with no malice. The case before me is whether the trial Court was right in “stopping” the 1st and 2nd Appellants from performing their constitutional rights by restraining them from arresting and persecuting the Respondent.
I cannot help but laugh at this issue raised by the Appellants. Why are the Appellants worried that they have been prevented by the trial Court from prosecuting the Respondent in respect of the publication marked as Exhibit A? Why are the Appellants bothered that the trial Court has restrained them from arresting and prosecuting the Respondent when they do not have the intention to do same?
The Appellants filed a counter-affidavit in response to the affidavit in support of the originating motion and I quote paragraphs 5, 6, 7, 8 and 11.
(5) That no threat was ever made by the Respondents or any of their agents to the Applicant with regards to the publication mentioned in the affidavit in support or in connection with any expression whatever by the Applicant.
(6) That the 1st Respondent is very busy and never said he kept a record of the Applicant’s publication and radio programme and does not in fact keep them.
(7) That the 1st Respondent or any of his agents never threatened to stop the applicant from using the social media.
(8) That the Respondents do not have the powers to arrest.
(11) That the 1st Respondent never directed the 2nd Respondent to trump up any charge against the Applicant and also does not intend to give such a directive.
Now, taking the counter affidavit of the Appellants as their evidence before this Court, they have made it clear that the 1st Appellant has never threatened the Respondent, has never kept records or monitored her. The Appellants also made it clear that the 1st Appellant has never directed the 2nd Appellant to prosecute the Respondent and does not intend to give such a directive.
Thus, I will be considering the averments contained in the counter affidavit over the arguments of the Appellants’ counsel. The Appellants cannot be heard to now argue that they are being restrained from arresting and prosecuting the Respondent. Can you be restrained from doing an act you never intended to do?
Even though the Respondent has not adequately proved how her rights are being threatened and likely to be infringed upon, this is a Court of justice and justice must be done judicially and judiciously.
The Supreme Court in ZAKIRAI VS. MUHAMMAD (2017) 17 NWLR (PT. 1594) 181 AT 192 held thus:
“Judicial discretion is described as a sacred power that inheres to a Judge, and which should be employed judicially and judiciously. In the judicious and judicial exercise of discretion, a Court must be guided by the spirit and principle of law. The exercise has to be judicious in the sense that it must be based on sound decision marked by discretion, wisdom and good sense. See M.V. LUPEX VS. N.O.C.S. LTD (2003)15 NWLR (PT. 844) 469 AND ERONINI VS. IHEUKO (1989)2 NWLR (PT. 101) 46.”
The Respondent has come running to this Court after “reasonably” believing that her fundamental rights are likely to be infringed upon by the Appellants. Would it be wise for this Court to shut the door of justice against her because she did not prove her case to the satisfaction of this Court even when the Appellants have both jointly said they had no intention of prosecuting her in respect of Exhibit A? That would not be fair and just.
In the circumstances, the Appellants must be warned that the rights entrenched in the constitution are basic rights that belong to all of humanity, as they embody key values in our society such as equity, dignity, impartiality, and respect. They are an important means of protection for all of us, especially those who may face abuse, neglect or isolation. For this reason, the Courts do not take the infringement of these rights lightly. With respect to the instant case, the Appellants must ensure that the rights of the Respondent are respected, and that anything they do in exercise of their constitutional duties are done in accordance with the due process of law, and the rule of law.
Having resolved on the first issue that the Respondent herein failed woefully in furnishing before the trial Court sufficient materials and facts in proof of her case against the Appellants, this appeal must succeed, and it is so ordered. The judgment of the trial Court is hereby set aside. There is no order as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother Mohammed Baba Idris, JCA.
I agree with the reasoning and conclusion reached in the judgment. I also agree that the appeal is meritorious and it is also allowed by me. I abide by the consequential orders.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, MOHAMMED BABA IDRIS, 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:
E. K. Bakam, Esq. For Appellant(s)
G. M. Ballason, Esq. For Respondent(s)
