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GOV OF KADUNA STATE & ANOR v. MAIKORI & ORS (2020)

GOV OF KADUNA STATE & ANOR v. MAIKORI & ORS

(2020)LCN/14298(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/A/67/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. THE GOVERNOR OF KADUNA STATE 2. THE ATTORNEY GENERAL OF KADUNA STATE APPELANT(S)

And

  1. AUDU ADAMU MAIKORI 2. THE INSPECTOR GENERAL OF POLICE 3. THE COMMISSIONER OF POLICE KADUNA STATE RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CIVIL CASES

In the Supreme Court case of SUNDAY UZOKWE VS. DENSY INDUSTRIES NIG. LTD & ANOR (2002) LPELR – 3456(SC), it was held per Ogwuegbu, JSC that:
“In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings and no evidence is led on either side has the general burden of proof. See ELEMO & ORS V. OMOLADE & ORS (1968) NMLR 359.”
In the case of OKEGBE & ORS VS. AKPOME & ORS (2013) LPELR – 21969(CA), it was also held that:
“The law remains settled till date that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove. See: Section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD [2013] 1 NWLR (Pt. 1336) 618.” Per Lokulo-Sodipe, JCA (Pp. 51 – 52, paras G – A
In the case ofISIYAKU & ANOR VS. COP YOBE STATE & ORS(2017) LPELR – 43439(CA) it was held that:
“The Appellants had the obligation to lead credible and cogent evidence in proof of these allegations and this is because in civil cases, the general onus is on the claimant to prove to the satisfaction of the Court the assertions made in support of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of his case, a defendant is not obliged to adduce any evidence in rebuttal – Woluchem Vs Gudi (1981) 5 SC 291 Olowu Vs Olowu (1985) 3 NWLR (Pt. 13) 372, Eyo Vs Onuoha (2011) 11 NWLR (Pt. 1257) 1, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt. 1258) 375. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt. 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. This is explained by the maxim “ei qui afirrnat non ei qui negatincunbit probation which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt. 878) 411 Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1. This principle also holds true in allegations of breach of fundamental rights Fajemirokun Vs Commercial Bank (Credit Lyonnais) Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588, Onah Vs Okenwa (2010) 7 NWLR (Pt. 1194) 512.” Per ABIRU, J.C.A. (Pp. 23-25, Paras. D – B). PER IDRIS, J.C.A.

THE BURDEN OF PROOF IN PROVING THE LEGALITY OF AN ARREST

The question that must be answered is that; In prove of the legality of an arrest, upon whom does the burden of proof lie?
In the case of FIRST BANK OF NIGERIA PLC & ORS VS. AG FEDERATION & ORS (2013) LPELR – 20152(CA), it was held that:
“It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per Akomolafe-Wilson, JCA (P. 59, paras. C – F)
In the case of OKONKWO & ANOR VS. EKWEBI & ORS (2016) LPELR – 41059 (CA) it was held per Ogunwumiju, JCA that:
“It is settled that the onus of proving that an arrest and detention was lawful rests on the respondents. See EJEFOR V. OKEKE (2000) 7 NWLR PT. 665 PG. 363; AGBAKOBA V. SSS (1994) 6 NWLR PT. 351 PG. 475; OCEANIC SECURITIES V. ALH. BASHIR OLAIDE BALOGUN & ORS (2012) LPELR – 9218 (CA) (P. 21, PARAS. A – B).” PER IDRIS, J.C.A.

WHETHER OR NOT GENERAL DAMAGES ARE AWARDED AT THE DISCRETION OF THE COURT

In the Supreme Court case of ELF PETROLEUM VS. UMAH & ORS(2018) LPELR – 43600(SC) it was held per Ogunbiyi, JSC that:
“It is an established principle of law that in cases where a party is demanding for or claiming general damages, the Court awards same at its discretion. See the decided cases of Akinterinwa V. Oladunjoye (2000) 1 NWLR (Pt. 659) 93 at 115; UBN Plc V. Ikwen (2000) 3 NWLR (Pt. 646) 223 at 237; Yalaju Amaye V. AREC Ltd. (1990) 4 NWLR (Pt. 145) 422 @ 451 and Osuji V. Isiocha (1989) 3 NWLR (Pt. 111), 623 @ 640.” (P. 26, Paras. D – F)
The award of general damages by the trial Court is discretionary as the law empowers him to award damages depending on the circumstances of each case. PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By an originating motion filed on the 5th of May, 2017, the 1st Respondent as Applicant brought an action against the 1st and 2nd Appellants and also the 2nd and 3rd Respondents, seeking for the following reliefs:
(1) A DECLARATION that the Applicant being a human being and citizen of the Federal Republic of Nigeria is entitled to the enjoyment, protection and enforcement of his Fundamental Rights as enshrined in Sections 33,34,35,36,37,38,39 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended).
(2) A DECLARATION that the Applicant being a citizen of Nigeria, a member country that ratified the Universal Declaration of Human Rights, a global expression of the rights to which all human beings are inherently deserving is entitled to the protection and promotion of his right to freedom of movement within the territory of the Nigerian states and shall be free to leave any country including his own as enunciated in Article 13 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Civil and Political rights.

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(3) A DECLARATION that it is wrong in law and a gross violation of the Applicant’s Fundamental right as provided in Section 35 of the CFRN 1999 for the 2nd Respondent to influence, initiate or order the arrest, detention and attempted prosecution of the Applicant for his tweets on twitter of the 23rd January 2017, which did not in any way instigate or cause any violence in Kaduna State or in any part of Nigeria at all.
(4) A DECLARATION that the arrest of the Applicant from Lagos on 17th February, 2017 and his subsequent detention in Abuja from the said date for almost 48hrs on a warrant signed by a Kaduna Magistrate but not registered in any Court in Lagos state and his second subsequent arbitrary arrest and detention on Friday 10th March, 2017 till Monday 13th March, 2017 in legally unjustifiable circumstances was a violation of the Applicant’s right to liberty and security of person as enunciated in Section 34 of the 1999 Constitution of the Federal Republic of Nigeria and Article 9 of the International Covenant on Civil and Political Rights.
(5) A DECLARATION that the re-arrest of the Applicant on 10th March, 2017 in Abuja after he was

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previously cleared of charges and released by the IGP Monitoring Unit, his being ferried in a convoy of 6 trucks from Abuja to Kaduna as well as his subsequent detention from Friday 10th March till Monday 13th March, 2017 in State (Special) Anti-Robbery Squad detention facility, a facility reserved for hardened armed robbers and criminals at Ibrahim Taiwo Road, Kaduna State without being informed of the reason of his arrest and detention is brazen violation of his inherent right to life, right to dignity of person, right to freedom of movement, right to fair hearing and right to personal liberty as enshrined in Section 33,34,35,36, 37 and 41 of the 1999 Constitution of the Federal Republic of Nigeria, Article 13 of the Universal Declaration on Human Rights and Article 12 of the International Covenant on Civil and Political Rights.
(6) A DECLARATION that the arrest and incarceration of the Applicant at a time when he was deathly ill and on bed rest, the detention of the Applicant at a poorly aerated and overcrowded cell in the most inhuman condition, knowing his respiratory health challenge, his poor and fragile state of health and against medical records

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was a direct attempt at snuffing out the life of the Applicant and is a violation on the right to life of the Applicant as enunciated in Section 33 of the 1999 Constitution.
(7) A DECLARATION that the deterioration of the Applicant’s health while in detention for which he was taken into the police medical facility where he was confirmed inter alia to have respiratory infection on Sunday, 12th March, 2017 in addition to his prior health challenge of syncopal attack, High blood pressure and recommendation for immediate MRI scan is a threat to life of the Applicant as enshrined in Section 33 of the 1999 Constitution.
(8) A DECLARATION that the incarceration of the Applicant even when he submitted medical reports to show he was gravely ill, the exacerbation of his ill health status for which his health condition is being investigated and as a result of which he is currently fighting for his life in a hospital abroad and incurring huge medical bills is a violation of the Applicant’s right to life for which the Applicant is entitled to damages.
(9) A DECLARATION that the brazen and open threats issued by the 3rd Respondent to the Applicant

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and the 3rd Respondent’s use of State powers, apparatus and facility to incarcerate, intimidate, harass, terrify, terrorize, overawe and unnerve the Applicant has made the Applicant apprehensive and in a state of fear for his life and is a direct breach of Section 33,35 and 37 of the 1999 Constitution.
(10) A DECLARATION that the numerous threats received by the Applicant’s family members of being attacked as a result of the Applicant’s civic engagement and tweets and the intimidation, harassment and unnerving suffered by the Applicant’s family is a breach of Section 37 of the 1999 Constitution for which the Applicant is entitled to redress.
(11) A DECLARATION that the constant threats issued by the 3rd Respondent in the media to the effect that the Applicant will be arrested, prosecuted and jailed for his tweets on twitter and social media on the 23rd of January, 2017 is a breach of the Applicant’s fundamental Rights to dignity, personal liberty, fair hearing, expression, private and family life, thought and conscience as provided in Section 34,35,36,37,38 and 39 of the 1999 Constitution.
(12) A DECLARATION that

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the statements and pledge issued by the 3rd Respondent to the national and international press (especially the British Broadcasting Corporation Radio) on the 4th of March, 2017 at the Social Media Week held in Lagos state that he “shall ensure the thorough prosecution of the Applicant for allegedly circulating inflammatory materials capable of exacerbating the deadly conflict in Southern Kaduna” and his statement that “we are trying to link his tweet with the possible death of Fulani people that may have occurred around the time and if we can establish that link you know what that means” is an intention manifested and executed by the 3rd Respondent to arrest, unlawfully detain manifested and executed by the 3rd Respondent to arrest, unlawfully detain manifested and executed by the 3rd Respondent to arrest, unlawfully detain in perpetuity, prosecute and jail the Applicant through the 1st and 2nd Respondents on clearly trumped up allegations for simply expressing his beliefs and opinion on social media and is therefore a breach of the Applicant a breach of the Applicant’s right to fair hearing and to freely express himself, a

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violation of his right to freedom of thought and a violation of his dignity of person as enshrined in Section 34,35,36 and 39 of the 1999 Constitution.
(13) A DECLARATION that the harassment, intimidation and wrongful detention of the Applicant in a small cell meant for hardened criminals with seventeen people and in a facility which had no sanitary structure and his being treated as though he were a convicted criminal in the hands of the 1st, 2nd and 3rd Respondents which psychologically traumatized him is a violation of his right to dignity, presumption of innocence and personal liberty as enshrined in Section 34, 35 and 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(14) A DECLARATION that the 4th Respondent’s physical presence and coordination of detention proceedings of the Applicant at the headquarters of the 2nd Respondent through its Deputy Director for Public Prosecution after official work hours was a violation of the rights to a fair trial and due process of the law and violates Article 9 of the Universal Declaration of Human Rights and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

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(15) A DECLARATION that the arrest and detention of the Applicant in the 1st and 2nd Respondent’s facility and the subsequent denial made to the Nigerian press on Sunday 12th March, 2017 by the 2nd Respondent through their spokesperson, Aliyu Usman that the Applicant was not in their custody, a news item which the 1st, 2nd, 3rd and 4th Respondents have not altered through a rejoinder is an extra judicial arrest for which the Applicant suffered physical and psychological torture and violates Article 9 of the Universal Declaration of Human Rights and Section 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(16) A DECLARATION that the unlawful arrest, detention, harassment, bad press, hateful comments emanating from the respondents to the public inflicted grave injury on the international business repute of the Applicant which affected the international ratings of the international artistes signed up under the Chocolate City label for which the Applicant is the president was severely impaired and undermined the reputation of the Applicant personally, his staff and management of the Chocolate city group and that entitles the Applicant to

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damages.
(17) AN ORDER compelling the 1st and 2nd Defendants to tender a public apology jointly and severally in 10 National dailies and 10 international dailies for the wrongful incarceration, obnoxious embarrassment, injury to pride and sense of being and attack on personal and business reputation which the Applicant has suffered.
(18) AN ORDER that all the Respondents cannot in law cause or authorize the arrest and prosecution of the Applicant for his legal and civic engagements nor should the respondents constrict civic engagement spaces which do not instigate any violence or cause any breach of the peace in Kaduna State Nigeria or anywhere at all.
(19) AN ORDER OF INTERLOCUTORY INJUNCTION restraining the respondents quiatimet by any executive powers, advice and/or any directive in any manner whatsoever and howsoever from violating the rights to liberty and movement of the Applicant who is ready and willing to stand trial and present his defence in Court.
(20) AN ORDER FOR COMPENSATION in the sum of N1,000,000,000 (One Billion Naira) only as compensation for the violations of the Applicant’s right to personal liberty as enunciated

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in Section 35(6) of the 1999 Constitution for the loss of his business earnings while in detention.
(21) AN ORDER FOR GENERAL DAMAGES in the sum of N10,000,000,000 (Ten Billion naira) only for injury to character, self reputation, business reputations, esteem, proper feeling of pride of the Applicant, his staff, management and the Applicant’s other international business concerns.
(22) AN ORDER FOR DAMAGES in the sum of N10,000,000,000 (Ten Billion Naira) only for injury to health for medical bills being incurred by the Applicant in treating himself and for psychological damage done on the Applicant.
(23) The cost of this suit.
(24) 10% interest per annum on damages until total and final liquidation or same.
(25) Any other relief(s) that the Court may deem just and fit to make in the circumstance.

It is the 1st Respondent’s case as Applicant at the trial Court that he is a lawyer, a civil rights activist and famous for his civic and human rights campaign on social media and has been vocal against the killings in Southern Kaduna his community. He stated that he was arrested on the 17th of February, 2017 in Lagos by a

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warrant of arrest signed by a magistrate in Kaduna State and subsequently transported to Abuja and detained in Asokoro Police Station for 24hrs, then released on bail on 18th February, 2017 for posting a tweet that was suspected to have caused the death of some people. The 1st Respondent claimed to have gotten the said information he tweeted from his driver without taking steps to verify. However, when he realized that the information was false and the driver was involved in fraudulent activities, he quickly ensured the driver was arrested.

He further stated that he was investigated between the 20th and 23rd of February, 2017 by the Inspector General of Police Monitoring Unit and was discharged by the Commissioner of Police, one Buba Limar. The 1st Respondent also stated that he was invited by the Police on the 10th of March, 2017 to Abuja and despite his ill health, he travelled down to Abuja. Upon his arrival, the 1st Respondent stated that he was arrested and taken forcefully to the Police Command Headquarters, Kaduna State.

Despite several requests and inquiries made by his lawyers, no information or reason was proffered for the reason for his

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re-arrest. The 1st Respondent further claimed that he was detained in a very small unhygienic room with other 17 hardened criminals. He also stated that as a result of this combined with his ill health, he collapsed and had to be rushed to a nearby hospital where he was diagnosed with “severe upper respiratory infection”.

The 1st Respondent also explained that he was arraigned on the 13th of March, 2017 before the Chief Magistrate Court on a charge of criminal conspiracy, injurious falsehood and inciting disturbance of Public Peace contrary to Section 24 of the Cybercrime Act. The Court, not having the jurisdiction to entertain the case granted him bail and the 1st Respondent immediately travelled to see his personal physicians as his health had greatly deteriorated. The 1st Respondent further claimed that he and his family members have constantly received death threats in respect of this case.

The 3rd Respondent, 1st and 2nd Appellants who were the 2nd, 3rd and 4th Respondents at the trial filed a joint counter affidavit to the originating motion, stating that the 1st Respondent (Applicant) posted a publication meant to be read in

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Kaduna via his twitter handle which caused five students of the College of Education, Gidan Wuye, Kaduna to be ambushed and shot dead by Fulani herdsmen.

It was further stated that investigations commenced and the 1st Respondent confessed that his publication was false and indeed caused the death of those people.

It was also stated that after this, the 2nd Respondent ordered that the case, exhibits and the 1st Respondent be transferred to Kaduna state where he was arraigned before the Chief Magistrate Court, Kaduna. It was stated that there were no medical records to show the ill health of the 1st Respondent as he has claimed and he did not contact any disease during his detention.

In delivering his judgment on the 27th of October, 2017, the learned trial judge held that the Appellants, 2nd and 3rd Respondents failed to employ the proper procedure permitted by law to arrest and detain the Applicant despite knowing his ill health records. The trial judge granted most of the reliefs sought by the 1st Respondent and awarded the total sum of N40,000,000 as general damages, stating that the judgment is purely in respect of the faulty and unlawful

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step taken by the Respondents towards seeking enforcement of the law, thus, serving as a lesson to law enforcement officers to ensure they discharge their duties in accordance to law.

Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of appeal on the 21st December, 2017, consisting of eight grounds of appeal.

The Appellants filed a joint brief of argument on the 2nd of March, 2018 and it was settled by Omokayode A. Dada Esq. Three issues for determination were distilled thus:
1. Whether the 1st Respondent herein established and or proved before the lower Court the allegations of non- registration in Lagos state the warrant of arrest issued by a Kaduna Magistrate before same was executed against him to have warranted the learned trial judge’s conclusion that his arrest and detention by the law enforcement agents was unlawful, arbitrary exercise of powers with impunity and an infringement on the personal liberty and rights to freedom of movements as enshrined in the Constitution of the Federal Republic of Nigeria 1999. (Grounds 1, 2, 3 of the Notice of Appeal.)
2. Whether in view of the material placed

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before him, the learned trial judge was justified in finding against all the respondents before his Court including the 1st and 2nd Appellants herein to the effect that by ignoring the medical report presented by the 1st Respondent herein the Respondent endangered, threatened his right to life and thus grossly violated dignity of human persons. (Ground 4 of the Notice of Appeal).
3. Whether the learned trial judge was justified in awarding a cumulative sum of Forty Million Naira (N40,00,000) against all his Respondents before his Court including the 1st and 2nd Appellants herein for the alleged wrongdoings of the 2nd and 3rd Respondents only. (Grounds 5,6, 7 and 8 of the Notice of Appeal).

On issue one, the Appellants’ counsel submitted that attention must be paid to the findings, holdings and conclusions of the trial Court in respect to this issue. The Appellants counsel submitted that it is clear that from the affidavit in support of the originating motion, the 1st Respondent did not make any deposition in any of his affidavits to the effect that the warrant of arrest issued by a Kaduna magistrate was not re-registered and endorsed in any

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Court in Lagos before same was executed against the 1st Respondent, thus, the holding of the trial Court was wrong.

It was also argued by Appellants’ counsel that contrary to the holding of the learned trial judge, there was no argument conversed by the 1st Respondent in his written address filed before the trial Court to the effect that the warrant of arrest signed by a Kaduna Magistrate was not re-registered or endorsed by a Court in Lagos state. And even if it was, it is trite law that submission of counsel cannot take the place of evidence. Reference was made to OSUIGWE VS. NWIHIM (1995) 3 NWLR (PT. 386) PAGE 752 PARA G – H.

The Appellants’ counsel have also argued that it is trite law that a party seeking declaration from the Court has the burden of proving and relying on the strength of his case and not on the weakness of the opposing party’s case. The case of ELENDU VS. EKWOABA (1995) 3 NWLR (PT. 386) PAGE 704 was cited in support.

It was further argued that assuming without conceding that the said warrant of arrest issued by the Kaduna Magistrate was not registered or endorsed in any Court in Lagos before

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execution, in the absence of any contrary proof by the 1st Respondent, issuance and execution of the said warrant of arrest enjoys the presumption of regularity provided by Section 168(1) of the Evidence Act.
The Appellants also submitted that the conclusions reached by the trial Court would have been the dismissal of the entire Fundamental Right action if the trial judge had averted his mind to the fact that the 1st Respondent failed woefully to proof his allegations of wrong execution of the said warrant of arrest issued by a Magistrate in Kaduna.

On issue two, the Appellants’ counsel had argued that the trial judge was wrong to have found the Appellants along with the 2nd and 3rd Respondents culpable for the violation of the fundamental rights of the 1st Respondent. It was argued that it is the duty of the Court to determine disputes between parties in accordance with the evidence adduced before it. Reference was made to BFI GROUP CORP. VS. BPE (2012) 18 NWLR (PT. 1332) PAGE 209 PARA D.

It was then submitted by the Appellants’ counsel that it amounted to injustice and miscarriage of justice for the trial judge to make use of

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evidence with regards to the alleged wrongdoing of the 2nd and 3rd Respondents to find them culpable jointly and severally.

On issue three, the Appellants’ counsel has argued that the trial Court was wrong to have awarded a cumulative sum of N40,000,000 against them and the 2nd and 3rd Respondents. The Appellants’ counsel analyzed the award of the first N10,000,000 awarded for the violation of the 1st Respondent’s right to personal liberty and loss of business earnings while in detention.

It was argued that the findings of the trial judge to the effect that execution of the warrant of arrest issued by a Kaduna Magistrate was unlawful has no bearing with the evidence adduced and thus, the award of the N10,000,000 as damages for this reason is faulty, unsustainable and wrong. It was further argued that although the trial judge tagged the award as general damages, the Appellants’ counsel argued that same qualified as a claim in rem of special damages which must be strictly pleaded and proved. It was also argued that none of the exhibits tendered to prove the monetary award indicated payment of any sum of money by way of expenses

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incurred by the 1st Respondent.

It was also argued that from the judgment of the trial Court, it was clear that the trial judge found facts that the 2nd and 3rd Respondents herein were the ones responsible for the medical conditions of the 1st Respondent. Thus, there was no reason why the sum of N10,000,000 was awarded against the Appellants, 2nd and 3rd Respondents jointly and severally.

On the award of the second N10,000,000, the Appellants’ counsel have argued that it should be set aside as the trial judge himself described conducts of the 1st Respondent to the extent that he had no character or integrity to be protected by the Court. Therefore, the Appellants’ counsel has argued that the said N10,000,000 being erroneously awarded must be set aside.

On the award of the N20,000,000 as cost of the suit and for medical bills being incurred by the 1st Respondent, the Appellants’ counsel has argued that it was made in error as no such claim was not made by the 1st Respondent. It was argued that is trite law that no Court has power to make an award or grant claim that is not made by a party in the suit. Reference was made to

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EKPENYONG & 3 ORS VS. INYANG EFFIONG & 6 ORS (1975) 2 SC PAGE 65.

Also, it was further argued by Appellants’ counsel that the award of the N20,000,000 amounts to double compensation as the 1st N10,000,000 was awarded to cover medical expenses. It was argued that the law frowns at double compensation. This Court was urged to set aside the award of the N40,000,000 awarded by the trial Court in favour of the 1st Respondent.

The 1st Respondent filed his brief of argument on the 5th of July, 2019 and it was settled by Gloria Mabeiam Bellason Esq.;
1. Whether the 1st Respondent herein established and or proved before the lower Court the allegations of non-registration in Lagos State, the warrant of arrest issued by a Kaduna Magistrate before same was executed against him to have elicited the learned trial judge’s conclusion that his arrest and detention by the law enforcement agent was unlawful, arbitrary exercise of power with impunity and infringement on the personal liberty rights to freedom of movements as enshrined in the constitution of the Federal Republic of Nigeria 1999. (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal).

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  1. Whether in view of the materials placed before him, the learned trial judge was justified n finding against all the Respondents before him including the 1st and 2nd Appellants herein to the effect that by ignoring the medical report presented by the 1st Respondent herein, the appellants endangered, threatened his right to life and thus grossly violated his dignity of human person. (Distilled from ground 4 of the Notice of appeal).
    3. Whether the learned trial judge was justified in awarding a cumulative sum of Forty Million Naira (N40,000,000) against all the Respondents before his Court including the 1st and 2nd Appellants herein for the wrong doings of the 2nd and 3rd Respondents only. (Distilled from Grounds 5, 6, 7 and 8 of the Notice of appeal).

On issue one, the 1st Respondent’ counsel has argued that he was arrested by a warrant of arrest signed by a Magistrate Court of Kaduna state but was not endorsed or “re-registered” in any Court Lagos state. He also argued that the Appellants never denied this in their joint counter affidavit filed in opposition to the Originating motion. It was then stated that facts

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not denied are deemed admitted FBN PLC VS. NDARAKE SONS LTD (2009) 13 NWLR (PT. 1164) PAGE 406 AT 414 – 415 PARA F.

It was further argued by 1st Respondent’s counsel that the burden of proof laid on the Appellants to show that they had complied with the tenets of law. It was the 1st Respondent’s counsel’s argument that the order by the 1st Appellant for the arrest of the 1st Respondent was only because he had at his disposal state powers, thus it was vindictive, abhorrent to natural justice and an exhibition of power on rampage and the trial Court was right when it held that the Appellants and the 2nd and 3rd Respondents had no legal basis for their action. Reliance was place on the case of NEMI VS. ATTORNEY GENERAL OF LAGOS STATE (1996) 6 NWLR PAGE 42 @ 55.

It was then submitted that the consequences of any breach of a fundamental right is that upon application to a Court, the action constituting the breach is bound to be declared unlawful, illegal and unconstitutional by the Court.

On issue two, the 1st Respondent’s counsel has argued that two medical reports were presented before the trial Court, both giving firm

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advise on the fragile state of the 1st Respondent’s health which the Appellants and the 2nd and 3rd Respondents chose to ignore. This therefore infringed on the right of life and right of personal liberty of the 1st Respondent. It was submitted that the right to life of the 1st Respondent was violated by the failure of the Appellants, 2nd and 3rd Respondents to take into cognizance his medical report and by ultimately ignoring the police clinic’s medical advice at a critical time to keep the 1st Respondent in a ventilated place as advised by the medical report of the police clinic, the 1st Respondent’s life was gravely put in danger.

The 1st Respondent’s counsel further stated that the Appellants have laboriously tried to argue to expiate themselves from the sanctions the trial Court imposed by stating that the medical reports were addressed to the 2nd and 3rd Respondents. In response, the 1st Respondent’s counsel argued that the appellants were acting in concert with the 2nd and 3rd Respondents and cannot deny responsibility.

On issue three, the 1st Respondent’s counsel stated that the Appellants have argued that

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the findings of the trial judge to the effect that execution of the warrant of arrest issued by a Kaduna magistrate was unlawful has no bearing with the evidence adduced thus making the award unlawful. In response, the 1st Respondent’s counsel has argued that their case at the trial Court was that by using a defective warrant of arrest, the arrest of the 1st Respondent was unlawful. The presumption of regularity cannot be accorded to the warrant of arrest.

It was further argued by 1st Respondent’s counsel that it is hard to see what is “not sustainable” in the pronouncement of the trial judge as the trial Court reached its finding on sound principle of law devoid of any misapprehension of facts. It was also argued that the award of damages was purely the discretion of the trial Court.

The 1st Respondent’s counsel also argued that the Appellants had the ample opportunity at trial to bring evidence in rebuttal knowing that the nature of the trial and the award was such which involved imputations of character injury but the Appellants never did.

The Appellants’ counsel filed their reply brief of argument, deemed

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on the 9th of March, 2020 and settled by Omokayode A. Dada. In response to the points raised and canvassed by the 1st Respondent, the Appellants have argued that if the Kaduna Police Command had washed their hands from the arrest and detention of the 1st Respondent and that the 1st Respondent’s arrest was ordered by the 1st Appellant for his personal vendetta as argued, why then did the 1st Respondent sue the 3rd Respondent who they believe is absolved of any liability in arrest and detention of the 1st Respondent as co-Respondents at the Trial Court when the 1st Respondent has shown in paragraph 6.0 of the Affidavit in support of the Originating motion that the 3rd Respondent is not responsible for the arrest and detention of the 1st Respondent.

It is the submission of Appellants’ counsel that the 1st Respondent is speaking from both sides of his mouth; first holding the 3rd Respondent liable and later saying it had washed its hands off every liability by virtue of their Press release referred to in Paragraph 6.0 of the Affidavit in Support of the Originating Motion. It is trite law that a party cannot approbate and reprobate. Reference was

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made to NAFDAC VS. ONWUKA (2014) PART 1398 AT 618 PARAS F – G.

It was further argued that the argument of the 1st Respondent that he was arrested and detained at the order of the 1st Appellant cannot hold water as the 1st Appellant does not own any detention either is the Police under the control and authority of the 1st Appellant.

The Appellants’ counsel admitted that the 1st Appellant as the Chief Security Officer reported the false tweet to the Nigerian Police who then carried out their legal obligation. It was also argued that the argument that the 2nd Appellant played the script of the 1st Appellant cannot hold water as the 2nd Appellant is the custodian of justice in Kaduna State has the duty to ensure the protection of citizens of Kaduna.

In response to the second issue, the Appellants’ counsel argued that it was never mentioned in the 1st Respondent’s Affidavit in support or further affidavit that the warrant of arrest was not re-endorsed by a Court in law neither were the Appellants and the 2nd and 3rd Respondents given notice to produce the warrant of arrest.

The Appellants further argued that the issue of

26

Notice to produce raised by the 1st Respondent in his brief of argument is a fresh issue for which leave must be sought and obtained. Reliance was placed on AKILA VS.DIRECTOR GENERAL SSS (2014) 2 NWLR (PT. 1392) PAGE 443 AT 476 PARA E – F.

Finally, it was further argued by Appellants’ counsel that assuming without conceding the 1st Respondent served notice to produce, the Appellants are not law enforcement agents who either capable of obtaining a warrant of arrest or executing same talk more of being in custody of same. This Court was urged to allow the appeal.

THE MAIN JUDGMENT
I have thoroughly read the briefs filed by the respective counsels in this appeal, I will now proceed to resolve the issues raised therein. I shall adopt the issues for determination raised by the Appellants as the issues that have arisen for the determination of this appeal. The issues again are:
1. Whether the 1st Respondent herein established and or proved before the lower Court the allegations of non-registration in Lagos state the warrant of arrest issued by a Kaduna Magistrate before same was executed against him to have warranted the learned

27

trial judge’s conclusion that his arrest and detention by the law enforcement agents was unlawful, arbitrary exercise of powers with impunity and an infringement on the personal liberty and rights to freedom of movements as enshrined in the Constitution of the Federal Republic of Nigeria 1999.
2. Whether in view of the material placed before him, the learned trial judge was justified in finding against all the respondents before his Court including the 1st and 2nd Appellants herein to the effect that by ignoring the medical report presented by the 1st Respondent herein the Respondent endangered, threatened his right to life and thus grossly violated dignity of human persons.
3. Whether the learned trial judge was justified in awarding a cumulative sum of Forty Million Naira (N40,00,000) against all his Respondents before his Court including the 1st and 2nd Appellants herein for the alleged wrongdoings of the 2nd and 3rd Respondents only.

ISSUE ONE
Whether the 1st Respondent herein established and or proved before the lower Court the allegations of non- registration in Lagos state the warrant of arrest issued by a Kaduna Magistrate

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before same was executed against him to have warranted the learned trial judge’s conclusion that his arrest and detention by the law enforcement agents was unlawful, arbitrary exercise of powers with impunity and an infringement on the personal liberty and rights to freedom of movements as enshrined in the Constitution of the Federal Republic of Nigeria 1999.

In resolving this issue, I must critically determine the party upon whom the burden of proof lies on. Does the burden of proof rest on the 1st Respondent to prove the non-registration of the warrant of arrest issued by a Kaduna State magistrate but same was executed against him in Lagos state? Does the burden of proof lie on the Appellants, 2nd and 3rd Respondent to prove that indeed the arrest of the 1st Respondent was lawful and in accordance with the due process of law?
In the Supreme Court case of SUNDAY UZOKWE VS. DENSY INDUSTRIES NIG. LTD & ANOR (2002) LPELR – 3456(SC), it was held per Ogwuegbu, JSC that:
“In civil cases, the ultimate burden of establishing a case is as disclosed on the pleadings. The person who would lose the case if on completion of pleadings

29

and no evidence is led on either side has the general burden of proof. See ELEMO & ORS V. OMOLADE & ORS (1968) NMLR 359.”
In the case of OKEGBE & ORS VS. AKPOME & ORS (2013) LPELR – 21969(CA), it was also held that:
“The law remains settled till date that the burden is on the party that asserts the existence of a particular thing or situation to prove the same. In other words, he who asserts must prove. See: Section 131 of the Evidence Act, 2011; and PHILLIPS V. EBA ODAN COMMERCIAL & INDUSTRIAL CO. LTD [2013] 1 NWLR (Pt. 1336) 618.” Per Lokulo-Sodipe, JCA (Pp. 51 – 52, paras G – A
In the case ofISIYAKU & ANOR VS. COP YOBE STATE & ORS(2017) LPELR – 43439(CA) it was held that:
“The Appellants had the obligation to lead credible and cogent evidence in proof of these allegations and this is because in civil cases, the general onus is on the claimant to prove to the satisfaction of the Court the assertions made in support of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of his case, a defendant is not

30

obliged to adduce any evidence in rebuttal – Woluchem Vs Gudi (1981) 5 SC 291 Olowu Vs Olowu (1985) 3 NWLR (Pt. 13) 372, Eyo Vs Onuoha (2011) 11 NWLR (Pt. 1257) 1, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt. 1258) 375. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt. 126) 253, Ogunyade Vs Osunkeye (2007) 15 NWLR (Pt. 1057) 218, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. This is explained by the maxim “ei qui afirrnat non ei qui negatincunbit probation which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt. 878) 411 Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt. 1230) 1. This principle also holds true in allegations of breach of fundamental rights Fajemirokun Vs Commercial Bank (Credit Lyonnais) Nig. Ltd (2009) 5 NWLR (Pt. 1135) 588, Onah Vs Okenwa (2010) 7 NWLR (Pt. 1194) 512.” Per ABIRU, J.C.A. (Pp. 23-25, Paras. D – B)
This is an appeal arising from a

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case bordering on the enforcement of the fundamental rights of the 1st Respondent. On who does the burden of proof lie?
In the case of OKAFOR VS. LAGOS STATE GOVT & ANOR(2016) LPELR – 41066(CA) it was held that:
“The law remains that he who asserts must prove. So the Appellant has the onus of proving by credible affidavit evidence that her fundamental rights were breached. See ONAH v. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535-536. This is so notwithstanding the Appellant’s contention that the core paragraphs of the Respondents’ Counter Affidavit had been struck out. The primary reliefs sought by the Appellant are declaratory in nature and she had the burden of proving the same by credible affidavit evidence irrespective of whether the Respondents filed a counter affidavit or not. See NWOKIDU v. OKANU (supra) and FRANCIS v. CITEC INT’L ESTATE LTD (supra).”
From the above cited cases, it is clear that both in general civil cases and in cases of fundamental rights enforcement, the burden of prove first lies on the plaintiff or Applicant as the case maybe to prove that indeed his rights were infringed upon by the Respondent and so,

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he is entitled to the reliefs sought. The Applicant is expected by law to prove by way of affidavit evidence and sufficient materials that indeed, his rights were infringed upon. It is inconsequential whether or not a counter affidavit was filed to controvert the depositions in the affidavit in support of the Originating motion. The Applicant must win on the strength of his case and not on the weakness of the Respondent especially when the Applicant is seeking for declaratory reliefs.                                                   ​In this appeal, the 1st Respondent sought in relief 4 for:
“A declaration that the arrest of the Applicant from Lagos on 17th February, 2017 and his subsequent detention in Abuja from the said date for almost 48hrs on a warrant signed by a Kaduna magistrate but not registered in any Court in Lagos state and his second subsequent arbitrary arrest and detention on Friday 10th March, 2017 till Monday 13th March, 2017 in legally unjustifiable circumstances was a violation of the Applicant’s right to liberty and security of person as enunciated in Section 34 of the 1999 Constitution of the Federal Republic of Nigeria and Article 9 of the International Covenant on Civil and Political Rights.”

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From the above relief sought, it is clear that the 1st Respondent must prove that he was arrested by the Appellants, 2nd and 3rd Respondents and the arrest was unlawful because the warrant of arrest executed against him was issued by a Kaduna State magistrate and it was not re-registered in a Court in Lagos.
The 1st Respondent has clearly made depositions in his affidavit in support of the originating motion that indeed, he was arrested. Paragraph 5.3 of the Affidavit in Support of the originating motion stated that:
5.3
That on Friday 17th February, 2017, the applicant was arrested from Lagos via a warrant of arrest signed by a Kaduna Magistrate, was subsequently detained in Asokoro Police station Abuja for 24hrs and released on bail on 18th February, 2017.
It is the contention of the Appellants that this paragraph does not show that the 1st Respondent made any deposition to the effect that the warrant of arrest issued by a Kaduna Magistrate was not re-registered and endorsed in any Court in Lagos before same was executed against the 1st Respondent.
I have looked at the said paragraph 5.3

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and I have applied a literal interpretation to it. Literally, what does paragraph 5.3 mean? To me, it clearly means that the 1st Respondent was arrested in Lagos via a warrant of arrest signed by a Kaduna State magistrate. Simple.
The 1st Respondent need not start to raise the issue of the illegality thereof in his affidavit in support of the originating motion. There is no law that states that a party must couch the wordings of his pleadings in the way the Respondent expects it to be. What is paramount is that the 1st Respondent raises the issue in his affidavit which he did.
Does the onus of proving that the warrant of arrest was illegally executed, thereby, rendering the arrest and detention of the 1st Respondent unlawful, lie on the 1st Respondent or the Appellants? Does the burden of proof shift?
It is trite law that the burden of proof in civil suits, including cases of enforcement of fundamental rights is not static. It shifts from one party to the other. The burden first lies on the Plaintiff after which it shifts to the Respondents to rebut allegations made against it.
The question that must be answered is that; In prove of the

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legality of an arrest, upon whom does the burden of proof lie?
In the case of FIRST BANK OF NIGERIA PLC & ORS VS. AG FEDERATION & ORS (2013) LPELR – 20152(CA), it was held that:
“It is an established principle of law that where there is evidence of arrest and detention of an applicant which were done or investigated by the respondent in an action for the enforcement of fundamental rights, it is for the respondent to show that the arrest and detention were lawful. In other words, the onus is on the person who admits detention of another to prove that the detention is lawful. See EJEFOR v. OKEKE (2007) 7 NWLR [pt. 665] 373; ONAGORUWA v. IGP (1991) 5 NWLR [pt.193] 593.” Per Akomolafe-Wilson, JCA (P. 59, paras. C – F)
In the case of OKONKWO & ANOR VS. EKWEBI & ORS (2016) LPELR – 41059 (CA) it was held per Ogunwumiju, JCA that:
“It is settled that the onus of proving that an arrest and detention was lawful rests on the respondents. See EJEFOR V. OKEKE (2000) 7 NWLR PT. 665 PG. 363; AGBAKOBA V. SSS (1994) 6 NWLR PT. 351 PG. 475; OCEANIC SECURITIES V. ALH. BASHIR OLAIDE BALOGUN & ORS (2012) LPELR – 9218 (CA) (P. 21, PARAS. A – B).”

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The Respondents at the trial never denied arresting and detaining the Applicant (now 1st Respondent). By admitting same, the burden of proving the legality of the arrest and detention shifts on the 2nd and 3rd Respondents and not the Appellants.
Did they discharge the burden placed on them by law? No. I have read through the counter affidavit filed by the Respondents at the trial Court and they never controverted the depositions of the 1st Respondent that the warrant of arrest was indeed endorsed in a Court in Lagos state and thus, the arrest was legal. The Appellants, 2nd and 3rd Respondents never brought before the Court the said warrant of arrest to show that it was re-endorsed by a Court in Lagos state. They left the depositions uncontroverted and did nothing to discharge the burden placed on them.
Contrary to the arguments of Appellants’ counsel, it is not the duty of the 1st Respondent to prove the legality of his arrest. It is not the duty of the 1st Respondent to lead credible evidence to show that his arrest and detention was unlawful. In the case ofENE & ORS VS. BASSEY & ORS (2014)

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LPELR – 23524(CA) it was held per Ndukwe-Anyanwu, JCA that:
“I agree that “the burden of proving the legality or constitutionality or the arrest and or detention of a person is of the arresting authority.” Therefore, it is the Appellants’ duty to justify the arrest of the Respondents. The Appellants have admitted the arrest and detention of the 1st Respondent. The onus is on them to prove that such arrest or detention was lawful. IYERE VS. DURU (1988) 5 NWLR (PT.44) PAGE 665; ABIOLA VS. ABACHA (1998) 1 HRLRA PAGE 453; JIMOH VS. ATTORNEY-GENERAL OF THE FEDERATION (1998) 1 HRLRA PAGE 513.”
I agree with the reasoning of the trial judge when he held on page 326-327 of the Records of appeal that:
“It is noteworthy that this affidavit evidence has neither been challenged nor controverted. It is hence deemed admitted and taken as true by the Court. See FBN PLC V NDARAKE & SONS (NIG) LTD (2009) 13 NWLR PART 1164 406 AT 414-415, PARA F – B, OBINECHE V AKUSOBI (2010) ALL FWLR PART 533 SC 1839 AT 1839 AT 1865 PARAS E-F. On this premise, it must be categorically stated that while the Respondents were entitled to arrest the

38

Applicant, they employed a wrong avenue for doing so. A warrant of arrest issued by a magistrate in Kaduna was not valid for execution in Lagos, except and until endorsed by a High Court can be validly executed in another state without endorsement by a competent Court within the state where it is to be executed.
Therefore, to the extent that the Applicant in this case, by uncontroverted evidence, has maintained that he was arrested in Lagos based on a warrant signed by a competent Court in Lagos, the arrest was improper, irregular and unlawful. By necessary implication, the Applicant’s detention was also unlawful notwithstanding that it is disclosed in paragraph 5.3 of the supporting affidavit that he was detained for 24hrs and released on bail on 18th February, 2017. Law enforcement agents are not free to exercise their power arbitrarily and with impunity.
Therefore, by dint of the Respondent’s failure to employ a proper procedure permitted by law to arrest and detain the Applicant, they are taken to have infringed the Applicant’s right to dignity of the human person, right to personal liberty and right to freedom of movement

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enshrined in Section 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) respectively.”
It is the duty and the onus lies on the Appellants, 2nd and 3rd Respondents to have put in evidence the warrant of arrest to contradict the depositions of its non-registration. Failure to do so, I am fully inclined to believe that they are fully aware that it would be detrimental to their case so they did not attach it as an exhibit to their counter affidavit.
I agree with the submission of 1st Respondent’s counsel that by virtue of Section 167(D) of the Evidence Act 2011, it was held that:
“The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case, and in particular the Court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.”
The trial Court was right to presume that the failure of the Appellants, 2nd and 3rd Respondents to

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produce the warrant of arrest clearly shows that it would not be favourable to their case. I cannot agree less.

Furthermore, the Appellants have argued that assuming without conceding, the said warrant of arrest issued by the Kaduna Magistrate was not registered or endorsed in any Court in Lagos before it was executed, in the absence of any contrary proof by the 1st Respondent, the issuance and execution of the said warrant of arrest enjoys the presumption of regularity as provided by Section 168(1) of the Evidence Act 2011 which provides that:
“when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
In the Supreme Court case of SHITTA-BEY VS. AG FEDERATION & ANOR (1998) LPELR – 3055 (SC), it was held per Onu, JSC that:
“Apart from what is called presumption of regularity of official acts, there is the presumption that, where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is expressed in the common law maxim in the Latin phrase Omnia praesumuntur rite

41

esseacta. This presumption is very commonly resorted to and applied especially with respect to official acts. See Ogbuanyinya v. Okudo (1990) (No.2) 4 NWLR (Pt. 146) 551 at 570 paragraphs D-E. See also Section 114 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990. The learned authors of Phipson on Evidence. Eleventh Edition have this to say on the subject: “The presumption which is nearly akin to that of innocence is chiefly applied to a judicial and official acts, and though sometimes conclusive, is in general only rebuttable. Thus, the constant performance of divine service from an early period in a Chapel raises a rebuttable presumption of its due consecration. Common instances occur also with respect to the validity of a person’s appointment to a public office, from his acting therein; and as to the due execution of deeds and wills. User of a way by the public as of right for twenty years gives rise to a presumption of dedication. See also Eaglehill Ltd v. J. Needham (Builders) Ltd (1972) 3 All E.R. 895 (H.L.) especially at page 905. It should be noted that Lord Cross expressly disavowed the application of the presumption of regularity

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and relied instead on the principle of construction ut res magisvaleat quam pereat. It is, with respect, hard to see why the latter should be applicable, or indeed the former inapplicable on the facts of the case. (Lord Dilhorne who reached the same result as Lord Cross – with whom the rest of the House agreed – preferred to rely no neither Latin tag). However, whatever the true description of the presumption involved, it seems clear that it cast a persuasive and not merely an evidential burden.” But it seems that the Court is bound to draw the inference where, as in the instant case, there is no evidence to the contrary. See Ogbuanyinya v. Okudo (No.2) (supra).” (Pp. 54 – 55, Paras. D – G)
In the case of FRN VS. ACHIDA & ANOR (2018) LPELR – 46065(CA), it was held per Sankey, JCA that:
“Indeed, as rightly submitted by the Respondents, a presumption of regularity attaches to official acts by virtue of Section 168 of the Evidence Act, 2011, which presumption is rebuttable.” (P. 68, Para. A).”
I agree that the warrant of arrest enjoys a presumption of regularity by virtue of Section 168 of the Evidence Act 2011. However, such

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presumption is rebuttable when there are facts that cast doubt on its regularity. In this instant case, the warrant of arrest cannot take cover under Section 168 of the Evidence Act 2011. This Court cannot presume its regularity in the face of all the arguments that have been canvassed and decided in favour of the 1st Respondent.
Issue one is hereby resolved against the Appellant.

ISSUE TWO
Whether in view of the material placed before him, the learned trial judge was justified in finding against all the respondents before his Court including the 1st and 2nd Appellants herein to the effect that by ignoring the medical report presented by the 1st Respondent herein the Respondent endangered, threatened his right to life and thus grossly violated dignity of human persons.

The Appellants have stated that the 1st Respondent had made depositions in the affidavit in support of the originating motion and the further affidavit that the Appellants, 2nd and 3rd Respondents failed to take into consideration the medical report describing the state of his health before he was arrested, thus, causing his health to deteriorate and his right to life being

44

infringed upon. The Appellants have however argued emphatically that all the depositions were directed against the 2nd and 3rd Respondents and so, the trial judge was wrong to have held them liable alongside with the 2nd and 3rd Respondents.
The question that must be asked and answered is: was the trial judge right to hold the Appellants jointly and severally liable along with the 2nd and 3rd Respondents in the circumstance of this case?
In answering this question, it must be determined that it was indeed the Appellants that set the law in motion against the 1st Respondent. If the 1st Respondent has been able to prove that his arrest by the 2nd and 3rd Respondents was by the instigation of the Appellants, the Appellants cannot escape liability.
The Appellants have argued and stated in their Reply brief paragraph 3.2.4 that:
“The argument of the 1st Respondent that he was arrested and detained on the order of the 1st Appellant cannot hold water as the 1st Appellant does not own any detention either is the Police under the control and authority of the 1st Appellant and we urge this Honourable Court to so hold. The 1st Appellant as the

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Chief Security Officer reported the false tweet of the 1st Respondent to the Nigerian Police who in turn carried out their legally recognized duty in arresting the 1st Respondent. Also, the argument that the 2nd Appellant is the custodian of justice in Kaduna state and has the duty to protect the rights of the citizenry and also ensure that justice is done in all situation irrespective of who is involved. On this premise, we urge this Honourable Court to discountenance the argument of the 1st Respondent as contained as contained in paragraph 4.1 – 4.2 of the 1st Respondent’s Reply brief of argument. May it please my lords to so hold.”
From this paragraph, it is clear that it is the Appellants that set the law in motion against the 1st Respondent. The 1st Respondent has led credible evidence at the trial Court to prove this and the Appellants have even admitted same.
In the case of JIMOH VS. JIMOH & ORS (2018) LPELR – 43793(CA), it was held per Tsammani, JCA that:
“Now, Section 35(1) of the 1999 Constitution which guarantees to the Appellant the Fundamental Right to personal liberty is derogable. In other words, there

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are circumstances, as stipulated in Paragraphs (a) – (f) of the said Section 35(1) of the Constitution, under which the right to personal liberty can be taken away. That being so, where an Applicant for the Enforcement of Fundamental Rights alleges that he was unlawfully arrested and detained in breach of his Fundamental Right to personal liberty, he has the onus to adduce credible evidence to show that he was arrested and detained and that the arrest and detention was illegal or unlawful. Where, as in the instant case, it is alleged that the arrest and detention was at the instigation of the Respondent(s), credible evidence must also be adduced to show that the arrest and detention was as a result of the instigation of the Respondent. It is after the Applicant has led such evidence that the onus will shift to the Respondent to show that the arrest and detention was lawful. See Fajemirokun v. C.B. (C.L.) (Nig.) Ltd (2002) 10 NWLR (pt.774) 95; Bayol v. Ahemba (1999) 7 S.C. (pt.1) 92; Okonkwo v. Ogbogu (1996) 3 NWLR (pt.449) 420; Shell Petroleum Development Company & Anor v. Daniel Pessu (2014) LPELR – 23325 (CA); Madiebo v. Nwankwo (2002) 1 NWLR (pt.748)

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426 at 433 and Abiola v. Federal Republic of Nigeria (1995) 7 NWLR (pt.405) 1. See also, Ejefor v. Okeke (2000) 7 NWLR (pt.665) 363. Thus, where there is evidence of the arrest and detention of an Applicant coupled with evidence that the arrest and detention was instigated by the Respondent in an action for enforcement of Fundamental Rights, it will be for the Respondent to show that the arrest and detention were lawful.” (Pp. 27 – 28, Paras. B – E).
It is the Appellants that set the law in motion against the 1st Respondent. However, can we say that the Appellants are equally guilty for the neglect of the medical reports by the 2nd and 3rd Respondents?
The Appellants must prove that the issue of the medical report, explaining the health status of the 1st Respondent was communicated to him by the 2nd and 3rd Respondents. The Appellants had ample opportunity to lead credible evidence at the trial Court to prove that indeed it was not aware of the medical status of the 1st Respondent and did not give subsequent directions to the 2nd and 3rd Respondents to further detain the 1st Respondent.
​This is not a matter of mere denial or

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ignorance of the medical condition of the 1st Respondent. The Appellants should have proved before the trial Court his non-involvement in the neglect of the medical records of the 1st Respondent.
Failure to do so, the Appellants cannot escape liability. I agree that the Appellants, 2nd and 3rd Respondents should be held liable, jointly and severally for the neglect of the medical records of the 1st Respondent which has a grave effect on his health while in detention and after his release. I so hold.
Issue two is hereby resolved against the Appellants.

ISSUE THREE
Whether the learned trial judge was justified in awarding a cumulative sum of Forty Million Naira (N40,000,000) against all the Respondents before the Court including the 1st and 2nd Appellants herein for the alleged wrongdoings of the 2nd and 3rd Respondents only.

In the Supreme Court case of ELF PETROLEUM VS. UMAH & ORS(2018) LPELR – 43600(SC) it was held per Ogunbiyi, JSC that:
“It is an established principle of law that in cases where a party is demanding for or claiming general damages, the Court awards same at its discretion. See the decided cases of

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Akinterinwa V. Oladunjoye (2000) 1 NWLR (Pt. 659) 93 at 115; UBN Plc V. Ikwen (2000) 3 NWLR (Pt. 646) 223 at 237; Yalaju Amaye V. AREC Ltd. (1990) 4 NWLR (Pt. 145) 422 @ 451 and Osuji V. Isiocha (1989) 3 NWLR (Pt. 111), 623 @ 640.” (P. 26, Paras. D – F)
The award of general damages by the trial Court is discretionary as the law empowers him to award damages depending on the circumstances of each case.

The Appellants have argued that the trial Court erroneously awarded the cumulative sum of N40,000,000 in favour of the 1st Respondent and against the Appellants, 2nd and 3rd Respondents jointly and severally. The said sum of N40,000,000 was awarded in respect of three different damages said to have been suffered by the 1st Respondent in the sum of N10,000,000, N10,000,000 and N20,000,000.

In respect of the first N10,000,000, the trial judge awarded it for the breach of the personal liberty of the 1st Respondent, maltreatment at the hands of the Appellants, 2nd and 3rd Respondents, the hardship his business has suffered as a result of the huge sum of money he has been spending or has spent on medical treatment home and abroad including other

50

incidental expenses.
The Appellants have argued that this form of damage qualifies as special damages which must be pleaded and proved. I do not agree with Appellants counsel as this amount to speculations. It is trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations.
In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also the cases of IKENTA BEST (NIG.) LTD VS.A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187 and ANIMASHAUN VS.UCH (1996) 10 NWLR (PT. 476) PAGE 65.

The award of the first N10,000,000 against the Appellants, 2nd and 3rd Respondents jointly and severally by the trial judge was right as the 1st Respondent must have indeed suffered the damages. I so hold.

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In the Supreme Court case ofFIRST BANK & ORS VS. A – G FEDERATION & ORS (2018) LPELR – 46084(SC) it was held per Augie, JSC that:
“I must say that the Appellants outlined the necessary framework for resolving this issue, one way or the other. As they rightly submitted, the following factors emanate from authorities they cited – ODOGU V. AG, FED. (SUPRA), ONWU V. NKA (SUPRA), ELIOCHIN LTD V. MBADIWE (SUPRA), ACB V. APUGO (SUPRA), UBN V. ODUSOTE BOOKSTORES (SUPRA), where this Court will interfere and reverse compensatory damages –
– The compensation should reflect not only the pecuniary loss of the victim but also the abhorrence of society and the law for gross violation of human rights.
– Trivialization of a serious matter, personal liberty by an inordinately low award should be avoided.
– Personal Liberty of the individual is a commodity of inherently high value.
– A Financial loss, which flowed directly from the Appellants’ prolonged incarceration, is a serious factor to be considered.
– Deprivation of liberty has consequential personal/sentimental impact.
– Judicial notice of the value of the Naira vis-a-vis

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other currencies should be taken by our Courts and is a relevant factor to be considered. Our Courts should keep up with the time and economic trend in the country and in particular with the prevailing decline in the purchasing power of the Naira over the past years.
– The Primary object of an award of damage is to compensate the Plaintiff for the harm done to him or a possible secondary object is to punish the Defendant for this conduct in inflicting that harm [exemplary damages].
– An award of damages can only be upset or interfered with by on Appellate Court if either the trial Court acted or proceeded upon wrong principles of law or the amount awarded by the trial Court is manifestly and extremely high or low.
– An Appellate Court will interfere where the trial Court acted under a mistake of law or acted in disregard of principles or acted under a misapprehension of facts or took into account irrelevant matters or failed to take account of relevant matters or where injustice would result if the Appeal Court does not interfere.
– An appellate Court will reverse the amount of damages where the amount awarded was too extremely high or so

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very small as to make it, in the Judgment of the Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled or where the circumstances calling for such interference are shown to the appellate Court.
In ODOGU V. A – G FED. (SUPRA), which the first Respondent also cited, Appellant was detained for about eight years but the trial Court only awarded him a sum of N2,000.00 as damages. The Court of Appeal increased the amount of damages to N75,000.00. Still dissatisfied, the Appellant appeared to this Court for a review. This Court allowed the Appeal and increased the amount of damages to N200,000:00.
I must point out that the quotations from the Judgment attributed by the Appellants in their Brief to this Court in Odogu’s case (supra), was made by the Court of Appeal in the Judgment appealed against. Even so, this Court agreed with the following passage by that Court.
Whatever compensation is awarded should truly reflect not only the pecuniary loss of victim but also the abhorrence of society and the law for such gross violation of human rights, particularly the right of personal liberty as in this case.

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An unwitting trivialization of a serious matter by an inordinately low award should be avoided. Personal liberty of the individual is a commodity of an inherently high value.”
However, in respect to the second N10,000,000, I agree with the submissions of the Appellants’ counsel. The trial judge was wrong to have awarded the sum of N10,000,000 in favour of the 1st Respondent as general damages for injury to character, self-reputation, business reputation, esteem, proper feeling of pride of the 1st Respondent, his staff, management and his other international business concerns.

One thing that must be clear is that the arrest of the 1st Respondent by the 2nd and 3rd Respondents on the request/instigation of the Appellants was ordinarily justified. His right to personal liberty could lawfully be withheld based on his admission that he made the tweet without proper verification of its authenticity. The crux of this case is that even though the personal liberty of the 1st Respondent qualified to be lawfully restricted, the Appellants, 2nd and 3rd Respondents did not carry out the arrest in accordance with the law, thus rendering the detention unlawful.

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But can the 1st Respondent benefit from his own wrongdoing? That will be unjust. Assuming without conceding that the warrant of arrest was properly executed, the arrest would have been lawful and the 1st Respondent cannot be heard to have suffered the damages claimed for. I hereby set aside the sum of the N10,000,000 made in favour of the 1st Respondent as general damages for injury to character, self-reputation, business reputation, esteem, proper feeling of pride of the 1st Respondent, his staff, management and his other international business concerns.

In respect of the award of the N20,000,000 in favour of the 1st Respondent as general damages for injury to health, for medical bills being incurred by the 1st Respondent in treating himself and for psychological damage done to him. The Appellants’ counsel have argued that this damages were not sought by the 1st Respondent and thus, the trial Court had no power to award damages not sought and it amounted to double compensation.
In the case of NZEGBUNA & ANOR VS. OKOYE & ANOR (2018) LPELR – 43943(CA), it was held that:
“In the case of a breach of Rights under the

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Fundamental Rights (Enforcement) Procedure Rules, the power of the High Court to award damages as it may consider appropriate, is governed by Section 46(1) and (2) of the Constitution of Nigeria, 1999 as Amended, which is reproduced for the avoidance of any doubt as follows; 1. 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 2. Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this Section and may make such order, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.” It is important to note that under Sub-Section (2) of Section 46, the High Court of a State is empowered to make such order, issue such writs and give such directions as it may consider appropriate for the enforcement of the Rights of a

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person. In the celebrated case of MINISTER FOR INTERNAL AFFAIRS vs. ABDULRAHMAN DARMAN SHUGABA (1982) 3 NCLR 915, the Court was of the clear view that a Court hearing a Fundamental Rights matter can award damages in compensation of the breach of a citizen’s rights even where it is not expressly claimed. Indeed by the Court’s decision, the High Court is at liberty to give any relief whether claimed or not but which the Court thinks can best secure the rights of the party claiming. However, the general attitude of Nigerian Courts is that damages cannot be awarded except in deserving circumstances and based on credible evidence. Where, however the trial Court fails to award damages in deserving circumstances, the Appellate Courts are eminently qualified to make proper awards as dictated by the evidence on record. See Section 22 of the Supreme Court Act and the case of BALIOL (NIG.) LTD vs. NAVCON LTD(2010) 16 NWLR (PT. 1220) 619 SC AT 633 where Supreme Court saw the need to award damages in a deserving circumstance. On the flip side of this issue, where an award of damages is improperly made by a trial Court, the Appellate Court also has the powers to review same

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either upwards or downwards. In determining what the quantum of damages to be awarded by the trial Court would be in any given situation, this Court per AUGIE, JCA (as he then was) in the case of ARULOGUN vs. COMMISSIONER OF POLICE, LAGOS STATE (2016) LPELR – 40190(CA) had this to say on the subject; “In fixing an amount for the infringement of fundamental rights, the following factor, inter alia, will be taken into consideration – (see AJAYI vs. A. G., FED (1998) 1 HRLPA 373) – (a) the frequency of the type of violation in the recent times; (b) the continually depreciating value of the Naira; (C) the motivation for the violation; (d) the status of the Applicant; and (e) the undeserved embarrassment meted out to the Applicant including pecuniary losses.” Per Oho, JCA (Pp. 24 – 28, Paras. E – D)
As decided by the apex Court, the trial Court has the power to award damages in respect of claims not expressly demanded for by the Applicant as long as he deserves same and there is credible evidence on record to prove that he is deserving of same. Without a shred of doubt, the 1st Respondent suffered psychological trauma as a result of his

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detention despite his ill health status that was present before his arrest but was aggravated as result of the actions and conducts of the Appellants, 2nd and 3rd Respondents.

However, I will set aside the said sum of N20,000,000 awarded by the trial Court for being too high in the circumstance. I hereby award the sum of N5,000,000 as damages for the psychological trauma suffered by the 1st Respondent.

In all, I award the total sum of N10,500,000 as general damages in favour of the 1st Respondent. The said sum of N10,500,000 must be paid jointly and severally by the Appellants, 2nd and 3rd Respondents.

The Appeal succeeds in part. The judgment of the trial Court is upheld except as to the amount awarded as damages. There is no order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother Mohammed Baba Idris, JCA.

I am in total agreement with the reasoning and conclusion that this appeal be allowed in part. I too do allow this appeal in part and I abide by the consequential order as made in lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the

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Judgment just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA. My Lord in a succinct and concise way resolved the issues for determination in this appeal and there is nothing more for me to add. I adopt the Judgment as mine and abide by the orders made therein.

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Appearances:

Ehikioya, Esq., with him, A. N. Ogundipe, Esq. For Appellant(s)

M. Ballason, Esq. – for the 1st Respondent For Respondent(s)