ISAH & ORS v. ALHAJI & ORS (2022)

ISAH & ORS v. ALHAJI & ORS

(2022)LCN/16882(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, April 11, 2022

CA/S/141/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

1. ALIYU ISAH 2. JAMILA MUHAMMAD 3. MUHAMMAD UMAR (Acting On Behalf Of Fatima Muhammad His 3 Years Old Daughter) APPELANT(S)

And

1. M. I. ALHAJI (F.R.S.C. Personnel Serving In Kebbi State Command) 2. J.E. OKOI (F.R.S.C. Personnel Serving In Kebbi State Command) 3. A. JUMARE (F.R.S.C. Personnel Serving In Kebbi State Command) 4. J. GARBA (F.R.S.C. Personnel Serving In Kebbi State Command) 5. D. MOHAMMED (F.R.S.C. Personnel Serving In Kebbi State Command) 6. FEDERAL ROAD SAFETY COMMISSION (F.R.S.C.) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURTS MUST CONSIDER AND PRONOUNCE ON ALL ISSUES PLACED BEFORE IT FOR DETERMINATION

No doubt, any Court or all Courts are duty bound to consider and pronounce on all issues placed before it for determination. The apex Court emphasised on this point when it held in Brawal Shipping (Nig.) Ltd. Vs. Onwadike Co. Ltd (2000) 6 SCNJ 508, 512 that:-
“It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal… By failing to consider same at all naturally leads to a miscarriage of justice as well as constituting a breach of the Appellant’s right of fair hearing. See also Owodunni V Registered Trustees of Celestial Church of Christ (2000) 6 SCNJ 299 at 426-427, AG Leventis Nigeria Ltd V Akpu (2007) 6 SCNJ 242.” PER HUSSAINI, J.C.A

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling (judgment) delivered at the Kebbi Judicial Division of the Federal High Court holden in Birnin Kebbi on the 28th March, 2019 which dismissed the case instituted by the Appellants who were the Applicants before that Court vide suit No. FHC/KB/CS/15/2018.

By the Application filed on their behalf at that Court, on the 23rd July, 2018, the Appellants had sought for the enforcement of their Fundamental Rights against the Respondents with respect to Personal Dignity, Integrity, and the recognition of the Appellants’ legal status pursuant to Sections 34, 35 of the Constitution of Federal Republic of Nigeria 1999 (as amended), among other Laws referred to and cited by them in that application.

Upon the Respondents being served with the processes originating the said suit, the Respondents filed their joint Counter-Affidavit and accompanied same with a written address on points of law.

The case for the Appellants put briefly is that the Respondents deliberately smashed the right side mirror of the 1st Appellant’s car at around the Birnin Kebbi City gate as a result of which the 1st Appellant was forced to stop to inquire why the respondents did what they did.

The Respondents it was contended, rather descended on the 1st Appellant and beat him. The 2nd Appellant who at that material time was inside the car was also not sparred as the 5th Respondent was said to have physically assaulted her, not minding that the 2nd Appellant was carrying her 3-year-old baby on her laps. Although the Appellants lodged a direct complaint of assault at the Magistrate Court vide case No. KB/76C/2018, against the 1st – 5th Respondents, the parties resolved to settle the case of assault out of Court. The Appellants, nonetheless, still approached the Federal High Court to seek the enforcement of their Fundamental Rights against the Respondents.

Respondents on their part have denied the allegation levelled against them. They insist that it was the 1st Appellant who drove his car in a dangerous manner and in that state of dangerous driving, caused the side mirror to car to brush on the 1st Respondent. The Respondents further allege that 1st Appellant drove his car without licence, a conduct which the Respondents have interpreted was contrary to the law.

The trial Court below, in its ruling delivered on the 28th March, 2019 addressed issues related to the competence of the action hence the names of the 1st, 2nd, 3rd, 4th and 5th Respondents were struck out as parties to the suit leaving only the 6th Respondent. The trial Court below, proceeded thereafter, in the same ruling (judgment) to hold that the Appellants failed to make out a case for themselves and thus dismissed the case as unmeritorious.

Against this ruling (judgment) and order, the appellants appealed to this Court vide the Notice of Appeal filed on the 26th June, 2019 containing three (3) Grounds of Appeal, thus: –
Ground 1
The trial Court erred in law and failed to act on the unchallenged/uncontroverted averments of the 2nd and 3rd Applicants.
PARTICULARS
(a) The respective sworn averments of the 2nd and 3rd Applicants reproduced in the judgment of the trial Court (pages 12 – 15) were not controverted which in effect established that the 2nd Applicant was slapped and the 3rd Applicant (a minor) was subjected to physical and metal violence. The single (joint) Respondent’s Affidavit also reproduced in the trial Court’s judgment (pages 15 – 17) did not traverse and/or challenge the 1st and 2nd Applicants’ (separate) Affidavits to this effect, more particularly on the material allegation of manhandling the 2nd Applicant and subjecting the 3rd Applicant (a minor) to undue violence against her mother (the 2nd Applicant).
GROUND 2
The trial Court failed in its duty to consider and pronounce on all issues raised by the parties before it.
PARTICULARS
(a) The Respondents’ argument in the (non-paginated) Respondents’ Written Address raised the issue of ‘res Judicata’ on ground of the criminal Case No.: CMC/V/76.DC/2018 against the 1st-5th Respondents for the offence of assault with the 1st and 2nd Applicants as Nominal Complainants. The Applicants in their Address on Points of Law joined issue with the Respondents on the ‘res Judicata’ argument. The trial Court did not make consideration and/or pronouncement on the issue at all.
(b) Furthermore, the Applicants in their Address on Points of Law raised an issue ‘whether the trial Court has the duty to act on the unchallenged averments of the 2nd and 3rd Applicants’. The trial Court failed to make any consideration and/or pronouncement on the issue either.
GROUND 3
The trial Court misdirect itself in the law when it acted on conflicting affidavits (based on the findings of the Court) and chose one over the other and arrived at its decision therefrom.
PARTICULARS
(a) The trial Court on page 18 paragraph 3 of the judgment the trial observed: ” … the respondent deny and alleged it was the Applicant who accosted and attacked them”. And in the 3rd to the last paragraph on same page the trial Court held: “A fact is not proved when it’s neither proved nor disproved neither.”

Parties hereto have filed and exchanged their briefs of argument consequent upon the record of appeal being transmitted to this Court and the same was deemed on the 16th March, 2021 as being properly transmitted and served.

In the appellants’ brief of argument filed on 20th August, 2021 but deemed filed on the 7th October, 2021, are three (3) issues which the appellants have identified for determination of Court and these are: –
(i) Whether the trial Court failed to its duty to act on the uncontroverted/unchallenged Affidavits of 2nd and 3rd Applicants.
(ii) Whether the trial Court failed in its duty to consider and pronounce on issues of “Res Judicata” and ‘failure to act on tan unchallenged Affidavit” raised by respondents and Applicants, respectively.
(iii) Whether trial Court misdirects itself in law and acted on conflicting Affidavits after making findings on existence of conflict.

The respondents filed a joint brief of argument on the 18th October, 2021 and formulated two (2) issues for determination, namely:
1. Whether the Appellants have placed credible and sufficient evidence in support of his application before the Court to entitle them to the relief sought.
2. Whether the trial judge did consider the affidavit evidence of the Appellants in dismissing the Appellants’ Application.

Learned counsel for both sides have made submissions in respect of each and every issue formulated by them in their briefs and these can be found at pages 6-13 of the Appellants Brief of Argument and at pages 3-9 in the Respondent’s Brief of Argument.

In response to the respondents’ brief, the appellants filed a reply brief on the 23rd November, 2021. The same was deemed on the 19/1/2022. When the appeal came up for hearing on the 19/1/2022 both counsel adopted their respective briefs of argument.

I have considered the submissions made by the respective counsel in their briefs of argument on issues formulated by them for determination. For the purpose of addressing this appeal, I wish to adopt the three (3) issues formulated by the Appellants in their joint brief of argument, namely:
(i) Whether the trial Court failed to its duty to act on the uncontroverted/unchallenged Affidavits of 2nd and 3rd Applicants.
(ii) Whether the trial Court failed in its duty to consider and pronounce on issues of “Res Judicata” and ‘failure to act on tan unchallenged Affidavit” raised by respondents and Applicants, respectively.
(iii) Whether trial Court misdirects itself in law and acted on conflicting Affidavits after making findings on existence of conflict.

On issue no. 1 above, it was contended for the appellants that the trial Court ought to have acted on the uncontradicted facts contained in the affidavits of the 2nd and 3rd appellants, which facts as argued, has established that the 2nd and 3rd appellants were indeed physically and emotionally assaulted by the 1st-5th Respondents for which the 6th Respondent ought to be held liable. It was argued that the Court below was in error for its failure to act on those admitted facts. On this point, the learned appellant’s counsel cited and relied on decisions in Kopex Construction Limited vs. Ekisola (2010) 41 NSCQR 553, or (2010) 46 WRN page 1, 50 (SC), Lawson v. Okoronkwo & 2 Ors (2018) ELC 3221 (SC) page 1 OR (2018) 76 NSCQR 696.

At this point, I think I should revert to the Affidavits of the 2nd and 3rd Appellants in support of the application for the enforcement of their Fundamental Rights in accordance with Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The said affidavits can be found at pages 16-22 of the record of appeal. Put briefly, the deponents to the two affidavits have alleged that the 2nd and 3rd Appellants were physically and emotionally molested, by the 1st – 5th Respondents, a fact which led to the direct criminal complaint being lodged at the Magistrate Court.

The joint counter-affidavit relied on by the Respondents (are reflected at pages 51-53 of the record) at paragraphs 14-20 which state thus: –
14. “On that day (the 30th of May), the 1st and 2nd Applicants went to the Magistrates Court, lodged their complaints against myself and my team members (1st, 3rd, 4th, and 5th respondents).
15. Consequent upon that, a summons was issued to be served on us.
16. Sequel to the service of the summons, Mr. Bamidele, a lawyer working with the legal department of the Federal Road Safety Commission, came to the Magistrates Court.
17. He met with the counsel to the Applicants and proceeded into the magistrate’s chambers.
18. It was at the magistrate’s chambers that the Applicants were encouraged to settle out of Court an advice to which the Applicants agreed. This fact was referenced in the Applicants’ letter of demand with respect to the detained vehicle of” the 1st Applicant, pleaded as part of the Applicants processes.
19. The settlement was finally consummated on the 5th of June, 2018 with the terms of the Applicants being to the effect that the 1st Applicant’s vehicle be released to him’ while the criminal action against us, be withdrawn.
20. The terms of settlement were brought before the Magistrate Court that [lad entertained the Applicants’ complaints initially, and the Court pronounced on it as a consent judgment. The Certified True Copy of the Consent Judgment is hereby pleaded and marked as Exhibit ‘C’.”

The case which took the appellants to the Magistrate Court was indeed withdrawn after the amicable settlement of their differences with the Respondents hence the Court (Magistrate) Court in the consent judgment delivered at that Court held vide Exhibit ‘C’ attached to the counter-affidavit thus:
“Court: The settlement of the parties is hereby adopted as consent judgment. The parties are advised to respect each other while they are on duty and to abide by the rules and regulations of their official work and the case is hereby compounded and accused persons discharged. There is right of appeal to High Court of Justice within 30 days.”

The parties on both sides, having thus submitted themselves to an agreement which gave rise to the consent judgment, the appellants in particular have compounded or overlooked any act of assault allegedly inflicted on them by the Respondents (if any). It is therefore not correct in my view to suggest as the appellants have done when they alleged that the affidavits of the 2nd and 3rd Appellants in support of the application were not controverted. The facts in those affidavits were indeed, controverted by the facts contained in the joint counter-affidavit.
Having therefore compounded an assault case as the appellants have done, they cannot turn around to institute action at the High Court to seek for the enforcement of their Fundamental Rights in respect of those facts from which there is a consent Judgment. The trial Court cannot therefore be faulted in the circumstances of this case on appeal. Issue No. 1, is accordingly resolved against the appellants.

Issue No. 2 flow from the first so far as it relates to the consent judgment obtained at the Magistrate Court and being in existence at the time this case was filed at the Federal High Court. Issue No. 2 state thus: –
“Whether the trial Court failed in its duty to consider and pronounce on issues of “Res Judicata” and failure to act on an unchallenged Affidavit raised by the Respondents and Applicants respectively .”

No doubt, any Court or all Courts are duty bound to consider and pronounce on all issues placed before it for determination. The apex Court emphasised on this point when it held in Brawal Shipping (Nig.) Ltd. Vs. Onwadike Co. Ltd (2000) 6 SCNJ 508, 512 that:-
“It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal… By failing to consider same at all naturally leads to a miscarriage of justice as well as constituting a breach of the Appellant’s right of fair hearing. See also Owodunni V Registered Trustees of Celestial Church of Christ (2000) 6 SCNJ 299 at 426-427, AG Leventis Nigeria Ltd V Akpu (2007) 6 SCNJ 242.”

Learned appellant counsel in his brief of argument has submitted that by the failure of the Court below to make pronouncements on the issue of res judicata raised by the Respondents, the case before the trial Court was not properly adjudicated upon on account of want of fair hearing coupled with the failure of the Court to act on the affidavit evidence of the 2nd and 3rd appellants which he said, were not controverted.

I have before now taken the position that by dint of the counter-affidavit of the respondents, particularly those facts deposed to at paragraphs 14-20 of the Counter Affidavit (page 51-52 of the record) it cannot be said that the affidavits of the 2nd and 3rd Appellants in support of their application was not challenged. The case of the appellants, if I may reiterate, is that they were assaulted by the respondents and for which reason they have approached the Court below to seek the enforcement of their fundamental rights against the Respondents.

By paragraphs 14-20 of the Counter-Affidavit of the 2nd and 3rd Respondents, it is the view of the respondents that the appellants cannot maintain the action they instituted at the Court below against them given the existence of the consent Judgment (Exhibit ‘C’) which the parties including the appellants had subscribed to hence they were estopped from doing so. That I think is the purport of paragraphs 14-20 of the 2nd and 3rd Respondents Counter-Affidavit. I so hold having been invited by the learned appellants’ counsel to invoke Order 6 Rule 3 and Order 4 Rule 3 of the Court of Appeal Rules 2016, to revaluate this aspect of the appellant’s case or submission. Those provisions i.e. Order 6 Rule 3 and Order 4 Rule 3 of the Court of Appeal Rules 2016 are now defunct. However, this Court can in appropriate cases, invoke the provisions of Section 15 of the Court of Appeal Act, 2004, to do the needful where the Court of first instance was found wanting in the evaluation of facts and evidence before it. This I think, I have done but I do not find favour with the appellants over their submission on this point hence, the trial Court arrived at the right conclusion when it dismissed the case of the appellants as the Applicants before it. Issue No. 2 in consequence is resolved against the appellants. Closely, related to issue No. 2 is issue No. 3, which states: –
“Whether the trial Court misdirects itself in law and acted on conflicting Affidavits after making findings on existence of conflict.”

It has been submitted on behalf of the appellants that the Court below failed in its duties to assess the affidavit evidence supplied by the party on other side with a view of assessing same and giving preference to one over the other. It was argued that in a case such as this where there is a conflicting evidence of parties on both sides in respect of same facts the duty of the trial Court was to either: –
i. Evaluate the depositions and attach greater weight to one line of evidence over the other or
ii. Call for oral evidence to resolve the conflict.

We were urged to hold that the Court below evaded those procedures even in the face of the preponderance of the averments of the appellants in their affidavit over those of the respondents to warrant the Court below to act accordingly. It is further argued for the appellants that the balance of probability was in favour of the appellants. It is argued further, that though the trial Court, in its ruling found that there was conflicting evidence by parties on both sides, the Court still went ahead to give a ruling without resolving the conflict, in reference to the finding made at page 154 of the record of appeal by which the trial Court held:-
“While the Applicants alleged that the 1st Respondent hit the right hand side mirror of the 1st Applicant’s car, being driven by the 1st Applicant the Respondents assert that it was the right hand side mirror of the 1st Applicant’s car that hit the 1st Respondent’s hand who was avoiding being hit by the 1st Applicant, allegedly speeding off.
While the Applicants allege (sic) that it was the Respondents who attacked and manhandled the Applicants, the Respondents deny same and allege (sic) that it was the 1st Applicant who accosted and attacked them. In all these, there was no independent witness or testimony and no medical report tendered.”

I have carefully considered those submissions of the learned appellant’s counsel in his brief of argument but I find myself unable to agree with him on those submissions given the existence of Exhibit ‘C’, the Consent Judgment delivered at the Magistrate Court. That judgment at the Magistrate Court constitute res judicata to any subsequent proceedings which either of the parties may institute. The suit before the trial Court below filed by the appellants at the High Court which tend to resonate the facts covered by Exhibit ‘C’ is indeed res judicata, hence issue no. 3 does not arise, let alone to say that the Court below had failed in its duties to evaluate evidence adduced by the parties on those facts.

The trial Court therefore was right when it dismissed the case of the appellants. They had failed to discharge the burden on them to prove their case as ordained by law.

This appeal in effect fails, it lacks merit and the same is dismissed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother, S. T. Hussaini, JCA. I agree with his reasoning and conclusion that this appeal is devoid of any merits. It is accordingly dismissed by me too.

MOHAMMED DANJUMA, J.C.A.: I have the privilege to read in draft, the lead judgment of my learned brother, S. T. HUSSAINI JCA. I agree with the reasoning and conclusion that the appeal in effect fails for lacking in merit and same is dismissed.