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HARUNA v. C.O.P, KADUNA STATE & ANOR (2020)

HARUNA v. C.O.P, KADUNA STATE & ANOR

(2020)LCN/14295(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, June 16, 2020

CA/K/458/2017

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

YUSUF HARUNA APPELANT(S)

And

  1. COMMISSIONER OF POLICE, KADUNA STATE 2. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, KADUNA STATE RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS IN SUPPORT OF A BREACH IN THE AFFIDAVIT IN SUPPORT MUST SHOW THAT THE RIGHTS WERE VIOLATED

It is the law that facts in support of the breach in the affidavit in support must show clearly that the rights were violated or breached. See per Tobi JSC in GBADAMOSI V. DAIRO (2007) LPELR- 1315 (SC). Therefore, the affidavit evidence must reveal all the necessary facts and particulars that would enable the Court to be persuaded that the applicant’s fundamental rights were breached. PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT IT IS NECESSARY TO FILE A REPLY TO A COUNTER-AFFIDAVIT

It is necessary to file a Reply to the counter-affidavit or at least a further and better affidavit. Where such is not done, an applicant will be deemed to have admitted the grave allegations against him. See BADEJO V. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (pt. 464) 15; DANA AIRLINES LTD V. YUSUF & ORS (2017) LPELR-4304 (CA).  PER DANIEL-KALIO, J.C.A.

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): On 17/10/16 in the High Court of Kaduna State (the lower Court) an application was filed by the Incorporated Trustees of Avocats Sans Fontiers-France otherwise called Lawyers without borders on behalf of Yusuf Haruna, the Appellant, for the enforcement of his fundamental human rights guaranteed by Section 34 (1) (a) & (b) (6), 46 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 4, 5, 6, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 LFN 1990. The application brought by way of a motion on notice with a supporting affidavit and Exhibit, prayed the lower Court for the following reliefs-
​1. A declaration that the continued detention of the Applicant at the Convict Prison, Independence Way, Kaduna for a period ranging to 4 months without trial and without due process is unconstitutional, unlawful, illegal, null and void and constitutes a violation of the Applicant’s right to liberty as enshrined in Section 35 (1), (4) (a) and (b), (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

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  1. A declaration that the various acts of torture, harassment, assault, intimidation and inhuman and degrading treatment meted out on the Applicant is a violation of his rights guaranteed by Section 34 (1) of the 1999 Constitution and Article 5 of the African Charter on Human and Peoples’ Rights.
    3. An order releasing the Applicant from illegal detention forthwith unconditionally.
    4. An order awarding the sum of N2,000,000 (Two Million Naira only) being exemplary damages against the respondent and in favor of the Applicant for his right that was violated.
    5. An injunction restraining the 1st Respondent either by himself, agents, servants, and privies from further acts of intimidation, and torture of the applicant.
    6. And for such further or other orders this Honourable Court may deem fit to make in the circumstances.

The affidavit in support of the application deposed to on the Appellant’s behalf by Afisat Olatunji, a litigation Secretary in the law firm of Messrs Meshach Ajoku & Co. based on information the deponent received from Meshach Ajoku Esq. which the deponent believed to be true,

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indicates a few things. They include that the Appellant was arraigned before the Magistrate Court for culpable homicide and theft following his arrest by a vigilante group in Kakuri area of Kaduna State; that after his arrest he was detained at a Police Station in Kakuri and later at the State Criminal Intelligence and Investigations Department (S. C. I. D) where among other things, he was handcuffed, hit with a baton, flogged with a cane, and threatened that he would be shot if he did not confess. That as a result of the threat to his life, the Appellant was forced to endorse an already prepared confessional statement; and that since 2016, the 2nd respondent is yet to file a charge against the Appellant who has remained at the Federal Convict Prison, Kaduna. In a counter-affidavit filed on 10/12/16, Haruna Suleiman, a Chief Litigation Officer (Civil) in the Chambers of the Attorney-General of Kaduna State, denied most of the averments in the affidavit in support of the application and averred that a prima facie case was established against the Appellant as a result of which he was ordered by the Magistrate to be retained in custody and that an advice has

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been preferred against the Appellant by the 2nd Respondent. It was also averred that the Appellant has been charged with the offences of criminal conspiracy, armed robbery, culpable homicide, and theft; and that the Appellant was implicated in the killing of one Francis Bello.

In a Ruling delivered on 13/2/17 the learned judge, M. Mohammed J, after considering the affidavits of both parties and the addresses of their Counsel, referred to the case of GBADAMOSI VS. DAIRO (2007) 3 NWLR Pt. 102 p.288 where it was held that a party that seeks the enforcement of his fundamental rights must establish with particulars in his application, how his fundamental rights were breached or infringed upon. The learned judge held that all the actions taken by the Respondents against the Appellant were actions taken by them in the course of performing their statutory duties. The learned judge noted that the 2nd respondent has written an advice that the Appellant be charged to Court and that a Charge has in fact been brought against the Appellant who is to be tried for the offences mentioned in that Charge before High Court No. 5, Kaduna. The trial judge referred to the

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dictum of Bulkachuwa JCA (as she then was) in the case of A.G. ANAMBRA VS. UBA (2005) 15 NWLR Pt. 947 at p. 44 to the effect that it is an interference with the powers given by the Constitution to law officers to carry out criminal investigation, for a person to go to Court to be shielded from such investigation. The Court held that the applicant did not place sufficient materials before it to show that his fundamental rights have been infringed upon or breached by the respondents. Consequently, the application was dismissed. Dissatisfied, the Appellant filed a Notice of Appeal challenging the final Ruling.

The parties filed and exchanged Briefs of Argument. Two issues were distilled by the Appellant’s learned Counsel, Abdullahi Haruna, Esq. for determination. The said Appellant’s Brief of Argument was filed on 9/4/19 and deemed filed on 30/5/19. The issues are-
1. Whether the trial Court would not have arrived at a different conclusion if it had properly and adequately evaluated the evidence before it;
2. Whether the appellant has not placed sufficient evidence before the Court that his fundamental rights had been violated to warrant a decision

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in his favor.

In the Brief of argument filed on 27/5/19 on behalf of the 1st Respondent but deemed filed on 30/5/19, the 1st Respondent’s Counsel, Uzoma H. Azikiwe, Esq. formulated a sole issue for determination which reads:
“Whether the lower Court was not right when it dismissed the Appellant’s Motion on Notice dated 13th October, 2016, seeking the enforcement of his fundamental rights.”

The issue formulated by the 1st Respondent suffices for consideration in deciding this appeal.

​Arguing the appeal, the Appellant’s learned Counsel submitted that the lower Court misapprehended the issue before it when it reasoned at page 50 of the Record of Appeal that the Appellant was seeking to be shielded from the power of law enforcement officers to carry out criminal investigation. It was contended that the purpose of the application of the Appellant was to complain against torture, harassment, assault, intimidation and inhuman and degrading treatment and to restrain further acts against his person. It was contended that the lower Court failed in its duty to review, evaluate and assess the evidence presented by the parties before it. He cited

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authorities that point to the need to exercise this duty. In this regard, he cited EZECHUKWU V. ONWUKA (2016) 5 NWLR ( Part 1506) 529 at 551; MBANG V. JANET (2015) ALL FWLR ( Pt. 767) p.766 at 784. It was contended that the lower Court failed to examine the veracity of the counter-affidavit in response to the Appellant’s application. He pointed out that in this case, the deponent of the counter-affidavit one Haruna Suleiman described to be a litigation officer in the chambers of the Attorney-General, stated that he received the information he deposed to from one M. F. Mohammed Esq., Senior State Counsel and that Haruna Suleiman had absolutely no knowledge of the facts stated in the counter-affidavit. In view of that, the lower Court had a duty to look beyond the deposition, he submitted. It was urged on us to hold that the denial in the counter-affidavit is not acceptable in law. Learned Counsel also urged on us to strike out paragraph 5 of the counter-affidavit for offending the provision of Section 115 (2) of the Evidence Act which requires that an affidavit shall not contain extraneous matter by way of objection, prayer, legal argument or conclusion. It was

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further contended that paragraph 4 (b) and (d) of the counter-affidavit did not contradict the specific allegations of mistreatment of the Appellant. It was submitted that in view of the grave allegations made against the Police in the affidavit in support of the application and the denial of same in the counter-affidavit, the least that was expected of the lower Court was to order the parties to adduce oral evidence in order to resolve the conflict and determine where the truth lay. He cited BABALE V. EZE (2012) ALL FWLR (Pt. 635) 287 at 336; EZECHUKWU V. ONWUKA (supra). It was contended that the failure to call for oral evidence by the lower Court was fatal to the decision reached by that Court. It was submitted that the Appellant proved the violation of his human rights and we were urged to so hold. It was submitted that an appellate Court can enforce fundamental human rights as entrenched in the Constitution where a trial Court has failed in its duty to do so. The case of AHURUONYE V. IKONNE (2015) ALL FWLR part 811 was cited in support.

​In his argument in response, the 1st respondents’ learned Counsel argued that the lower Court was right when it

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held at page 50 of the Record of Appeal that the Appellant did not place sufficient materials before the Court to show that any of his fundamental rights were breached. Citing the case of OANDO V. FARMATIC BIOGAS WEST AFRICA LTD & ANOR (2018) LPELR-45564 (CA), it was submitted that a mere deposition in an affidavit that states that an applicant was arrested is not sufficient to constitute proof of the infringement of the applicants fundamental rights and that there has to be cogent, convincing and credible evidence to prove an alleged infringement of the fundamental rights. The case of ADEKUNLE V. A.G. OF OGUN STATE (2014) LPELR-22569 (CA) was cited in support. It was contended that there was no scintilla of evidence to justify the claim that the fundamental rights of the Appellant were breached. It was submitted that the Appellant having been arraigned and subsequently ordered to be detained by a Court of competent jurisdiction, the Appellant cannot allege that he was unlawfully detained. The case of AKANBI & ORS V. C.O.P. KWARA STATE & ORS (2018) LPELR-44049 (CA) p. 21-24 was cited in support. Learned Counsel submitted that it is noteworthy that

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at the time of the hearing of the Appellant’s application for the enforcement of his fundamental rights, the Appellant was already charged to Court for the offences of criminal conspiracy, armed robbery, culpable homicide and stealing. It was contended that the lower Court carried out a proper evaluation of the evidence of the parties before arriving at its conclusion. We were referred to pages 47-50 of the Record of Appeal. The lower Court having carried out a proper evaluation of the evidence before it, this Court it was urged, should not interfere with the evaluation. The case of ONYEKWULUJE & ANOR V. ANIMASHAUN & ANOR (2019) LPELR-46528 (SC) and that of BAKO & ANOR V. AUDU & ANOR (2018) LPELR-44394 (CA) were cited in support. It was contended that contrary to the submission of the Appellant’s learned Counsel that specific paragraphs in the affidavit in support of the Appellant’s application were not controverted, the paragraphs were specifically controverted. We were referred in particular to paragraph 5 of the counter-affidavit. The said paragraph 5, contrary to the submission of the Appellant’s learned Counsel, was not a conclusion and

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therefore not contrary to the provision of Section 115 (2) of the Evidence Act, it was submitted. Besides, it was argued that the question of paragraph 5 being contrary to the provision of the Evidence Act, is a new issue on appeal having not been raised at the lower Court and therefore cannot be raised on appeal without the leave of this Court. The said issue it was further submitted, is incompetent and should be struck out by this Court. On the submission of the Appellant’s learned Counsel that there were conflicts in the affidavit evidence before the lower Court that should have made that Court to call for oral evidence to resolve the conflicts, again, it was argued that the issue was never raised at the lower Court and cannot be raised in this Court without leave. At any rate, there were no conflicts in the affidavit evidence before the lower Court that called for oral evidence to resolve, it was submitted.

​Now, the appellant’s learned counsel tried to fault the reliance of the lower Court on the dictum of Bulkachuwa JCA (as she then was) to the effect that a person cannot go to Court to be shielded from criminal investigation. He submitted that the

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decision of the lower Court based on its reliance on that dictum was a misapprehension of the Appellant’s complaint which he submitted, was against torture, harassment, assault, intimidation and inhuman and degrading treatment. The appellant’s learned counsel, it is obvious, forgot that the complaint of the Appellant was also against a breach of his right to personal liberty under Section 35 of the 1999 Constitution. Indeed the first relief he sought in his application was in respect of the violation of his right to liberty. It is true though that the Appellant also complained about the violation of his right to dignity of the human person guaranteed under Section 34 of the 1999 Constitution. It is the law that facts in support of the breach in the affidavit in support must show clearly that the rights were violated or breached. See per Tobi JSC in GBADAMOSI V. DAIRO (2007) LPELR- 1315 (SC). Therefore, the affidavit evidence must reveal all the necessary facts and particulars that would enable the Court to be persuaded that the applicant’s fundamental rights were breached. In paragraph 4 (f)-(j) of the affidavit in support of the application, it was averred

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that a police officer tore the clothes of the Appellant, that he was hit with a baton, handcuffed, kept under the sun and flogged. All these averments were described in paragraph 4 (a) of the counter-affidavit as false and not representing the true facts of the case. Not only were the facts in the affidavit in support denied in the counter- affidavit, the counter-affidavit went on to state what the deponent of the counter-affidavit considered to be the true facts. The averments in the counter-affidavit disclosed that one Francis Obemeasor Bello was found dead along Rahama Road, Kaduna on 19th March, 2016, that investigation connected the Appellant to the death of the said Francis Obemeasor Bello; that the Appellant was arrested, cautioned and volunteered a confessional statement, and that a charge has been filed against the Appellant in the High Court for the offences of Criminal Conspiracy, Armed Robbery, Culpable Homicide, and theft. These weighty facts in the counter-affidavit should not have been received by the Appellant with silence as they challenged facts including the one averred by the Appellant in paragraph 6 of the affidavit in support of his

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application that no charge has been filed against him. In a situation like that, silence is not golden. The appellant should have reacted “loud and clear” by filing a reply to the counter-affidavit in order to persuade the Court of the truism of the facts averred in the affidavit in support of his application. He did not do so. If I may indulge in an oxymoron, his silence was loud. Where there are grave allegations in a counter-affidavit, it is not the time to keep quiet. It is necessary to file a Reply to the counter-affidavit or at least a further and better affidavit. Where such is not done, an applicant will be deemed to have admitted the grave allegations against him. See BADEJO V. FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (pt. 464) 15; DANA AIRLINES LTD V. YUSUF & ORS (2017) LPELR-4304 (CA). I therefore cannot fault the decision of the lower Court at page 50 of the Record of Appeal that “from all documents filed in support of this application, this Court finds and so hold that the applicant has not placed sufficient materials before this Court to show that any of his fundamental rights have been infringed upon or breached by the

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respondents”. Certainly, the lower Court was right. One of the fundamental rights which the Appellant claimed was violated as earlier pointed out in this judgment, was his right to personal liberty guaranteed by Section 35 of the Constitution. That right is not an absolute one as the same Constitution permits the right to personal liberty to be breached for the purpose of bringing a person before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence. With regard to Section 35 (4) of the Constitution which the Appellant specifically alleged was breached, the Constitution states in subsection 7 (a) of Section 35, that nothing in the section i.e. Section 35, shall be construed in relation to subsection (4), as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence. From the counter-affidavit, the Appellant is under detention upon reasonable suspicion that he committed Armed Robbery and Culpable Homicide, which are capital offences. Regarding

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paragraph 5 of the counter-affidavit which the Appellant’s learned counsel submitted is a conclusion and therefore violates Section 115 (2) of the Evidence Act which states that an affidavit shall not contain extraneous matter by way of objection, prayer or legal argument or conclusion, I see nothing in the paragraph that can be regarded as a conclusion. The paragraph says that the respondents never violated the rights of the Appellant. That statement merely controverts the position of the Appellant. The paragraph also avers that the respondents were only carrying out their primary duty. It is a fact that the primary duty of the 1st respondent includes the arrest of suspects and investigation of crime. It is also a fact that the duties of the second respondent includes filing charges and prosecution of offenders.
​Contrary to the position of the Appellant’s learned Counsel, there is nothing wrong with the deponent of the counter-affidavit Haruna Suleiman, a Chief Litigation Officer, deposing to facts he received from M. F. Mohammed Esq. Senior State Counsel. Section 115 (4) of the Evidence Act provides that a person who deposes to his belief in any matter

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of fact when such belief is derived from information received from another person, should disclose the name of his informant and give reasonable particulars respecting the informant, and the time, place and circumstances of the information. This provision was complied with in paragraph 4 of the counter-affidavit.
It is therefore clear to me that the appeal has no merit. I dismiss it. The Ruling of the lower Court is affirmed.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment of my learned brother, Obietonbara O. Daniel-Kalio, J.C.A. I am in complete agreement with the reasons therein and the conclusion that the appeal has no merit and should be dismissed. The appeal is dismissed. I adopt the consequential order made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother O.O. DANIEL-KALIO JCA, where the facts and issues in contention have been succinctly set out and determined. I agree with my learned brother that the appeal has no merit and I dismiss it. The Ruling of the lower Court is accordingly affirmed.

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Appearances:

ABDULLAHI ARUNA ESQ. For Appellant(s)

UZOMA H. AZIKIWE – for 1st Respondent For Respondent(s)