ISHOLA ABDULAHI v. OLUSEUN KOMOLAFE & ORS
(2019)LCN/12545(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/722/2013
RATIO
FUNDAMENTAL RIGHT: WHETHER FUNDAMENTAL RIGHT IS FUNDAMENTAL
“Parties should not see Fundamental right proceedings as a ready gate way of escape from the law. In appropriate cases the Court will enforce the fundamental right of a person but it must be made clear that the fundamental right is only fundamental and not absolute. In Ransome-Kuti & Ors vs. A.G. Federation & Ors (1985) 2 NWLR (Pt. 6) 211, Karibi- Whyte, JSC made this point clearly in these words: A careful reading of the provisions of Chapter III as a whole discloses that the sections in that chapter were designed for the protection of the individual against the harsh and oppressive legislations of the State; and to provide a remedy against the arbitrary exercise of executive power.” PER TOBI EBIOWEI, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
ISHOLA ABDULAHI
(Area Commander Area ‘G’ Command Ogba) – Appellant(s)
AND
1. OLUSEUN KOMOLAFE
2. MR. KAYODE OYELOLA
3. MR. DEMOLA MOKUOLU – Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of Hon. Justice M.B. Idris J. (as he then was) of the Federal High Court delivered on 31/5/13. The 1st Respondent who was Applicant in the lower Court brought the action registered as Suit No: FHC/ IKJ/CS/250/12 seeking for the enforcement of his fundamental right pursuant to Order II Rules 2, 3. 4 and 5 of the Fundamental Right (Enforcement Procedure) Rules 2009, Sections 34, 35, 36, 41 and 46 (1) (2) & (3) of the 1999 Constitution of the Federal Republic of Nigeria. The reliefs the Applicant sought in the lower Court is contained in pages 10-12 of the records which is also part of the judgment of the lower Court contained and 84-115 of the record.
The reliefs sought are as follows:-
1. A declaration that the act which is the basis of the complaint upon which the Respondent was arrested and detained and still threatens to further arrest and detain the Applicant is purely civil and devoid of any criminal element.
2. A declaration that the arrest and detention of the Applicant on 26th March, 2012 by the 1st-3rd Respondents is unlawful, wrong, unconstitutional and an infringement of the Applicants fundamental rights enshrined in Section 35 of the Constitution of the Federal Republic of Nigeria 1999.
3. A declaration that the brutalization and torture of the Applicant by Mr. Ishola Abdullahi, the 1st Respondent on 26th March, 2012 at Area G Command, Ogba, Lagos amounts to torture and inhuman treatment contrary to the provision of Section 34 of the Constitution of the Federal Republic of Nigeria, 1999.
4. A declaration that Mr. Ishola Abdullahi, the 1st Respondent on 26th March 2012 is not fit to be a member of the Nigeria Police Force.
5. An Order restraining the 1st, 3rd Respondents or any of their agents from further intimating, oppressing, harassing or unlawfully threatening the Applicant with forceful arrest or beatings.
6. An Order of perpetual injunction, restraining the 1st, 3rd Respondents, either by themselves their officers, agents, operatives, servants or privies from further intimidating oppressing, harassing, unlawfully arresting or in any manner whatsoever, infringing or interfering with the fundamental and constitutional rights of the Applicant.
7. N25,000,000 .00 (Twenty-Five Million Naira) as damages against the 1st, 3rd Respondents for the wrongful and gross violation of the fundamental rights of the Applicant.
8. N50,000,000.00 (Fifty Million Naira) as aggravated damages against the 1st-3rd Respondents for the wrongful and gross violation of the fundamental rights of the Applicant and for loss of business due to the loss of his mobile phone and particularly contacts.
9. A public apology by the 1st, 3rd Respondents to the Applicant for breach and violation of fundamental rights to be published in three insertions in a National Newspaper.
10. AND FOR SUCH FURTHER order or other orders as this honourable Court may deem fit to grant in the circumstances.
The lower Court in its judgment in pages 113-115 granted reliefs 2, 3, 5, 6, 7 & 9. In relation to relief 7, the sum of N2,000, 000 was granted as damages. The 1st Respondent in the lower Court against whom the judgment went appealed to this Court being dissatisfied with the judgment. The notice of appeal upon which this appeal is predicated is the further notice of appeal filed on 29/7/13 contained in pages 121-129 of the records. The case of the Applicant in the lower Court was that he was unlawfully and illegally arrested and detained by the Appellant in its police station on the 26/3/2012 and by that singular act violated his fundamental right. The lower Court agreed with him.
The lower Court in page 113 – 115 of the record in delivering judgment for the 1st Respondent in this appeal held:
As to the 1st and 2nd Respondent, I find the allegations against them undenied, unchallenged and uncontroverted. The affidavit is not self-contradictory and when presumed to be true are sufficient to maintain some of the prayers contained therein. In the circumstance, I hold that the Applicant is entitled to judgment against the Respondent as follows i. A declaration is made that the arrest and detention of the Applicant on 26th March 2012 by the 1st Respondent is unlawful, wrong, unconstitutional and an infringement on the Applicants fundamental rights enshrined in Section 35 of the Constitution of the Federal Republic of Nig. 1999.
(ii) A declaration is made that the brutalization and torture of the Applicant by Mr. Ishola Abdullahi, the 1st Respondent on 26th March 2012 at Area G command, Ogba, Lagos amounts to torture and inhuman treatment contrary to the provision of Section 34 of a Constitution of the Federal Republic of Nigeria 1999
(iii) An Order is made restraining the 1st -2nd Respondent or any of their agents from further intimating, oppressing, harassing or unlawfully threatening the Applicant with forceful arrest or beatings.
(iv) An Order of perpetual injunction is made, restraining the 1st, 2nd Respondents either by themselves, their officers, agents, operatives, servants or privies from their further intimidating oppressing, harassing, unlawfully arresting or in any manner whatsoever, infringing or interfering with the fundamental and constitutional rights of the Applicant.
(v) N2,000,000.00 (Two Million Naira) as damages against the 1st Respondent for the wrongful and gross violation of the fundamental rights of the Applicant.
(vi) A public apology shall be made by the 1st Respondent to the Applicant for breach and violation of fundamental rights to be published in one insertion in a National Newspaper.
The Appellant distilled 6 issues for determination in this appeal in the Appellants brief filed on 17/10/17 deemed on 24/5/18. These issues are:-
1. Whether an investigating police officer is not competent to give evidence on facts that came to his knowledge in course of execution of his professional duty.
2. Whether Federal High Court does not lack the jurisdiction to entertain actions between two private individuals.
3. Whether evidence of a witness that is obvious exaggerated proportion or is reckless in its utterance should not be rejected in its entirety.
4. Whether the trial Court was right to had relied on new facts in reply on point of law without further affidavit over and above counter affidavit.
5. Whether failure to comply with Order II Rule 3 of Fundamental Rights (Enforcement Procedure) Rules 2009 does not render the entire process null and void.
6. Whether judgment that is against weight of evidence is not liable to be set aside?
The Respondents issues for determination distilled from grounds of appeal as contained in the respondents brief is as follows:-
1. Whether a person who is not the investigating police officer in the action involving the 1st Respondent can depose to the counter affidavit on behalf of the Appellant at the lower Court.
2. Whether the application before the lower Court was competent and the Court had the requisite jurisdiction to entertain the action at the time.
3. Whether the weight of evidence before the lower Court is not in favour of the Applicant/Respondent to grant him judgment.
The Appellants brief of argument was settled by Emmanuel I. Eze esq., and adopted by him on 8/11/18. In addressing issue 1, counsel submitted that the lower Court was wrong to have struck out the counter affidavit of Sergeant Bolarinde Muyide, the IPO which he swore to on behalf of the Appellant. This is because the information therein was from the investigation he made and not from any source and therefore it is not contrary to Section 115 of the Evidence Act. He referred to R vs. Taoridi Lawani (1959) L.L.R. 97; Abiodun vs. CJ Kwara State (2007) 18 NWLR (Pt. 1065) 1065 and Fajemirokun vs. Commercial Bank Nigeria Limited & Anor (2009) 2-3 SC (Pt. 1) 53.
This is also the first issue raised by the 1st Respondents counsel in the 1st Respondents brief of argument filed on 5/12/17 and settled by Gloria A. Opeyokun (Mrs.) deemed on 24/5/18. Relying on Section 115 (3) of the Evidence Act and the cases of Nahman vs. Wolowicz (1993) 3 NWLR (Pt. 282) 443,456; Njoemana vs. Ugboma & Anor (2014) LPELR- 22494 (CA); Josien Holdings Ltd & Ors vs. Lornamead Ltd & Anor (1995) LPELR-1634 (SC) and Usman vs. New Nigerian Bank Plc (2013) LPELR-20404 (CA), counsel submitted that the counter affidavit of the Appellant sworn to by sergeant Bolarinde Muyinde offends the Evidence Act and therefore was properly struck out by the lower Court. The said Sergeant Bolarinde Muyinde was not IPO of the case under reference. It is submission of counsel that since the Appellant was sued in his personal capacity, he alone can swear to the counter affidavit.
The matter in the lower Court been an action between private individuals counsel submitted, should not be before a Federal High Court but rather in the State High Court. He referred to Section 46 (1) & 251 of the 1999 Constitution; Order II Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009 and the cases of Tukur vs. Government of Gongola State (1989) 4 NWLR ( Pt. 117) 517 @ 541; Inah vs. Ukoi (2002) 9 NWLR (Pt. 733) 563: Nepa vs. Edegbero (2002) 18 NWLR (Pt. 798) 79. This is the second issue raised by Appellant in his brief.
This is also the second issue raised for determination by 1st Respondent in his brief of argument. It is the submission of Counsel that on fundamental right proceedings both the Federal High Court and the State High Court has concurrent jurisdiction to determine such matters. After reviewing the law on the Courts duty to ensure substantial justice and how jurisdiction is determined, counsel submitted that the lower Court had the jurisdiction to entertain the subject matter since it borders on Fundamental right. He referred to a lot of cases including PDP vs. Abubakar (2007) 3 NWLR (Pt. 1022) 515 @ 544; Sea Trucks ( Nigeria) Ltd vs. Anigboro (2001) LPELR-3025 (SC); Okunlade vs. Azeez & Ors (2009) LPELR-4730 (CA); Mbanaso vs. Offor & Ors (2012) LPELR-19683 (CA); Surakatu vs. Nigerian Housing Development Society Ltd & Anor (1981) 4 SC 26; Loveday vs. The Comptroller of Prison, Federal Prisons, Aba & Ors (2013) LPELR-22072; Felix A. Uwa vs. Sunday Etim & Anor (2010) LPELR-5079 (CA): Igwe vs. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61.
The lower Court in its judgment in page 113 of the record struck out the name of the 3rd Respondent. In this respect, the Appellant raised the 3rd issue and urged Court to resolve same in his favour. It is counsel submission that since all the parties are jointly and severally sued, the striking out of the name of the 3rd Respondent should have made the lower Court strike out the names of the other Respondents in the lower Court. The lower Court, counsel submitted, raised the issue suo moto and resolved same which it ought not to have done. He referred to Mallam vs. Mairiga (1991) 5 NWLR (Pt. 189)114: Kadzi intl. Ltd vs. Kano Tannery Co. Ltd & Ors (2004) 4 NWLR (Pt. 864) 545 @ 575: Mobil Producing (Nig.) Unltd vs. Monokpo (2003) 18 NWLR (Pt. 852) 347 @ 403.
This is issue 3 of the Appellants according to Appellants counsel for determination. On the issue of service, it is counsel submission that the process was properly served and it is upon the consequence of that, the Appellant filed his processes and was represented by counsel. The fourth issue according to counsel is on the finding of the Court that the 3rd Respondent in the lower Court did not deny the allegations against him. He referred to paragraphs 6, 7, 10, 11, 13, 15 and 16 contained in pages 51-54 of the record to show clear denials. This would have been enough to dismiss the case, counsel submitted. More so, he submitted further that the lower Court should not believe the story of the 1st Respondent simply because there is no counter affidavit. He cited Soy Agencies Industries Services vs. Metalum Ltd (1991) 2 NWLR (Pt. 177) 35: Nwosu vs. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 144) 758; Okoye vs. Kpajie (1972) NWLR 84; Fashanu vs. Adekoya (1974) 6 SC 83; Chukwu Construction Company Ltd vs. Uwechie (2000) 2 NWLR (Pt. 643) 92 and Aiguokhian vs. State (2004) 7 NWLR (pt. 873) 565.
The fifth issue counsel submitted should be resolved in favour of the Appellant as the lower Court relied on fresh facts in the reply counter affidavit which the 1st Respondent in the lower Court had no opportunity to reply to.
In that affidavit, the 1st Respondent introduced one Adams as the IPO of the matter. The lower Court relying on that affidavit came to the conclusion it did. It is counsel submission that the lower Court was wrong in relying on that affidavit. This while addressed in the brief as issue five, is really issue four.
Issue 5 is on the non-compliance with Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. It is counsel submission that such noncompliance is fundamental and affects the case of the 1st Respondent who is Appellant before this Court. He relied on Solanke vs. Somefun (1974) 1 SC 148.
The sixth issue which is Respondents third issue is whether the judgment is against the weight of evidence. Appellant says it is while the 1st Respondent says it is not. The Appellant filed a reply brief on 17/10/17. The main issue addressed in that reply was the averment by the 1st Respondent to the effect that the IPO was not Bolarinde Muyide but one Adams. It is counsels submission that the onus is on the 1st Respondent to so establish. He referred to Oyefeso vs. Coker (1999) 1 NWLR (Pt. 588) 6; Abiodun vs. CJ Kwara State (2007) 18 NWLR (Pt. 1065) 109 and the provisions of Sections 41 and 189 of the Evidence Act. The other issues addressed in the reply brief are not necessary as they amount to re-opening the address of the Appellant.
The issues raised by the appellant for determination and the way they were addressed in the brief are a bit confusing. His argument in the brief do not follow the way the issues are raised. Issues 3 and 4 raised for determination did not correspond with the argument on the issues in the brief. This gave me some problems. However for proper determination of this appeal, it really does not matter much. It is therefore safer for me to raise my own issues for determinations as there is no law against such. See; Scirrocco Int. Ltd vs. Unity Bank Plc (2016) LPELR 40265 (CA); Shema & Ors vs. FRN (2018) LPELR 43723 (SC); Agbareh & Anor vs. Mimra & Ors (2008) LPELR 43211 (SC).
The law allows me to distill my own issues for determination provided they arise from the grounds of appeal. Using that liberty, I will distill four issues for determination in this appeal. They are;-
I. Whether the lower Court was right in striking out the counter affidavit of the 1st Respondent which was sworn to by Sergeant Bolarinde Muyide and not by the 1st Respondent himself.
II. Whether the lower Court had jurisdiction to entertain the matter in the first instance being a fundamental right matter between private individuals
III. Whether the Applicant substantially complied with Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009.
IV. Whether the judgment is against the weight of evidence.
The lower Court decision in this case is mainly predicated on its refusal to consider the 1st Respondents (Appellant in this appeal) counter affidavit. The Court in this respect held that since the Appellant was sued in its personal capacity he should have sworn to the counter affidavit by himself. Failure to do this is fatal to his case as it offends Section 115 of the Evidence Act. The counter affidavit was therefore struck out. This is what the lower Court said in page 112 of the record:
In the circumstances, the 1st Respondents counter affidavit is hereby struck out. Having struck out the said counter affidavit, there is absolutely nothing from the 1st Respondent to counter, contradict or controvert the affidavit filed by the Applicant in support of his application. I therefore take the facts as duly established against the 1st Respondent.
I will however start with issue 2 which deals with jurisdiction. This is because it is the law that when the issue of jurisdiction is raised, it should be addressed first. The second issue deals with whether the lower Court been the Federal High Court has jurisdiction to entertain this matter which is a fundamental right proceedings between private individuals. The Appellant raised this issue and submitted that since the matter involved private individuals, the Federal High Court has no jurisdiction in the first place to entertain the matter. Jurisdiction is the foundation of the power of the Court to entertain any suit. This is conferred by law. It is the life wire of the Court in determining an action. It is so important that any action taking by a Court or decision reached without it amounts to a nullity. See Okonkwo vs. INEC (2006) EPR Vol. 2 page 99 and Owner of the MV Arabella vs. Nigeria Agricultural Insurance Corporation NSCQR Vol. 34 2008 page 1095.
The cause of action will be considered in determining jurisdiction. The matter before the lower Court which is the subject of this appeal pertains to fundamental right.
The 1st Respondent (here) before the lower Court as alleged the violation of his fundamental right mostly by the Appellant. By the provision of Section 46 (1) of the 1999 Constitution of the Federal Republic of Nigeria, any person who alleges that his fundamental right is violated, can apply to the High Court in that state for the enforcement of his fundamental right. The High Court of a State means either the State High Court or the Federal High Court in that State. The caveat however is that the breached right must fall within matters that falls within the jurisdiction of that Court. Sounding more specific, the Federal High Court only has jurisdiction on fundamental right cases if the infrigined right falls within the provision of Section 251 (1) of the Constitution which spells out the jurisdiction of the Federal High Court or if such action involves Federal Government Agency. In this respect, I find the case of Iheme vs. Chief of Defence Staff & Ors (2018) (CA) per Onyemenam JCA at pages 20-28 very instructive. The Court held:
Now on whether the trial Court was in error to hold that it lacked the Jurisdiction to hear the subject matter and determine the case. All the counsel relied strongly on the Apex Courts decision in Adetona vs. Igele General Enterprises Ltd. (2011) 7 NWLR (PT. 1247) PG 542; to support their position.
The Supreme Court in ADETONA vs. IGELE GENERAL ENTERPRISES LTD. (supra) at page 543 held:
Where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46 (1) to the Judicial Division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation, or the State or the Federal Capital Territory. However it should be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction.
Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court.
Furthermore, the Supreme Court in the most explicit terms interpreted Section 46(2) of the Constitution thus:
On Jurisdiction of the Federal and State High Court over action for enforcement of fundamental rights – A High Court of a State lacks Jurisdiction to entertain matters on Fundamental Rights, although brought pursuant to Section 46(2) of the Constitution, where the alleged breach arose from a transaction or subject matter which falls within the exclusive Jurisdiction of the Federal High Court as provided by Section 251 of the Constitution. Adetona vs. I.G. Enterprises (SUPRA) at P.564, Para. E. F.”
His Lordship went on further to comment on the apex Court case in the judgment in these words:
The Apex Courts holdings reproduced above is the bone of contention of the parties. The seeming import of the above judicial authority is that whereas both the State and Federal High Courts have concurrent jurisdiction in the determination of Fundamental Right cases, the phrase “subject to the provision of the Constitution” as embodied under Section 46(2) demarcated the respective Jurisdictions of the State and Federal High Courts. In essence, a State High Court cannot for instance rightly and validly determine allegations of breach of Fundamental Rights emanating from acts of Terrorism or Treason and Treasonable felonies which fall under the jurisdiction of the Federal High Court. Likewise, a Federal High Court cannot except where circumstances permit, validly determine alleged violation of human rights that arise from torts, rape or armed robbery etc. as the same ordinarily fall within the jurisdiction of the State High Courts.”
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has conferred exclusive jurisdiction on the Federal High Court in a matter in which the Federal Government or any of its agencies is involved. (Section 251(1) (p), (q), (r) and (s) Per Ibrahim Tanko Muhammad, J.S.C (P. 16).
Also in the case of Inegbedion vs. Selo-Ojemen & Anor. (2013) LPELR 19769 (SC); the Apex Court held:
The effect of Paragraphs (p), (q) and (r) of Section 251 (1) of the 1999 Constitution is to vest exclusive jurisdiction on the Federal High Court over all civil causes and matters in which the Federal Government or any of its agencies is a party. See NEPA vs. EDEGBERO (2002) 103 LRCN 2280 at 2281, 2282.”
The Apex Court in Adetona & Ors vs. Igele General Enterprises Ltd (2011) 1-2 SC (Pt. II) 1, held:
Although, unlike the 1979 Constitution, Section 318(1) of the present Constitution does not define “High Court”, there is no doubt that the term carries the same meaning as given by Section 277(1) of the 1979 Constitution to mean Federal High Court or the High Court of a State. Therefore, it is my understanding that where a person’s fundamental right is breached, being breached or about to be breached, that person may apply under Section 46(1) to the judicial division of the Federal High Court in the State or the High Court of the State or that of the Federal Capital Territory in which the breach occurred or is occurring or about to occur. This is irrespective of whether the right involved comes within the legislative competence of the Federation or the State or the Federal Capital Territory.
See the case of Minister of Internal Affairs v. Shugaba (1982) 3 NCLR 915. It has to however be noted that the exercise of this jurisdiction by the Federal High Court is where the fundamental right threatened or breached falls within the enumerated matters on which that Court has jurisdiction. Thus, fundamental rights arising from matters outside its jurisdiction cannot be enforced by the Federal High Court. See: Tukur v. Government of Gongola State (1989) 3 NSCC 225. Equally, a High Court of a State shall lack jurisdiction to entertain matters of fundamental rights, although brought pursuant to Section 46(2) of the Constitution where the alleged breach of such matters arose from a transaction or subject matter which fall within the exclusive jurisdiction of the Federal High Court as provided by Section 251 of the Constitution.
See also Hi- Quality Bakery Ltd & Anor vs. Longe & Ors (2018) LPELR-45173 (CA); Government of Kwara State & Ors NSCQR Vol. 29 2007 page 34.
Looking at the reliefs the 1st Respondent sought in the lower Court as contained in pages 10-12 of the record, it is clear and safe to say that the issues involved are not matters within the jurisdiction of the Federal High Court as spelt out in Section 251 (1) of the 1999 Constitution. It is a simple case of arrest of the 1st Respondent on alleged assault. This apparently not flowing from the matters itemized in Section 251 (1) of the Constitution, the Federal High Court had no jurisdiction to entertain the matter in the first place. This issue I resolve in favour of the Appellant. This is more so that the Appellant before us is sued in the lower Court in his personal capacity and therefore he does not quality to be referred to as a Federal Government Agency. The Appellant was sued in the lower Court as Ishola Abdullahi as a person. He is described for identification purposes as (Area Commander Area GCommand Ogba). This does not make the action to be termed one against Federal Government Agency. If it was the Nigerian Police Force that was sued, the position would have been different. The lower Court had no jurisdiction to entertain the action. The consequence is that the decision is a nullity.
Peradventure I am wrong, I will now discuss the first issue raised in this appeal for determination by both parties. This is also the first issue I formulated for determination. This is with regards to the counter affidavit of the 1st Respondent in the lower Court. The 1st Respondent there is Mr. Ishola Abdullahi. He is the Area Commander Area G Command Ogba, Lagos. Though he is sued in his personal capacity, it is not in dispute that the action complained about relate to his official responsibility. This is clear from all the processes filed. It is common ground between the parties that the Appellant in this appeal got involved in the matter that led to this appeal when a case of assault was reported to him in his capacity as a Police Officer. The counter affidavit of the 1st Respondent was deposed to by Bolarinde Muyide. He described himself as the IPO of the matter between the Appellant in the lower Court and the 2nd Respondent.
The 1st Respondent in this appeal in the reply affidavit averred that the IPO was one Adams. It is my considered opinion that who the IPO is, or was does not in any way make any difference as to the validity of the counter affidavit sworn to by Bolarinde Muyide on behalf of the 1st Respondent in the lower Court.
In the 1st Respondents counter affidavit in pages 36, 43 of the record, it is clear that most of the information in the counter affidavit were facts within the personal knowledge of the deponent Bolarinde Muyide. In such a situation, the law is clear, and it is that, the deponent does not have to disclose the source of his information since the facts are within his personal knowledge. The requirement in Section 115 (1) of the Evidence Act 2011 becomes necessary if the deponent got the information in the affidavit from a source. In such a situation, he is under obligation in law to disclose the source otherwise the affidavit will be invalid and those paragraphs which offend the provision of the Evidence Act will be struck out. See Sambo & Ors vs. Nigeria Army Council & Ors (2015) LPELR-40636(CA); Tukur vs. Sadiq & Anor (2016) LPELR-40318 (CA) and ACN vs. Nyako (2002) (Pt. 2) NSCQR 560. The averments in the counter affidavit were clear indication that the facts deposed to occurred in the presence of the deponent. In that regard, Section 115 of the Evidence Act 2011 is not applicable to the counter affidavit deposed to by Bolarinde Muyinde. The lower Court ought not to have struck out the counter affidavit on that ground.
Still on this issue, could Bolarinde Muyinde who is not a party to the suit in the lower Court swear to an affidavit on behalf of the 1st Respondent there (who is Appellant here). There is no law known to me that says a party to a suit must swear to the affidavit in that suit by himself. Indeed, provided the party gives authority to another person to do so, that person can swear to an affidavit on his behalf. The implication of swearing to an affidavit is that the deponent of the affidavit has put himself in a position to be called as a witness in the matter when oral evidence is required. See In Re: Agboyi-Ketu Local Development Area & Anor (2017) LPELR-41955 (CA). In Musa vs. A.G. of Taraba State & Anor (2014) LPELR-24183 (CA) this Court per Georgewill, JCA at pages 29-30 held:
Now, while it is not ordinarily wrong for a counsel to depose to affidavit on behalf of his client in very routine and non-contentious application before the Court, it is my view that it is not advisable for counsel to do so on matters of facts which are purely within the personal knowledge of his client unless such a counsel would be very diligent and careful to state the source of his information and belief and the circumstances of the facts deposed to by him on facts which are not within his own personal knowledge. See Section 115(1), (2) and (4) of the Evidence Act 2011.
The lower Court was in error in my view to have struck out the counter affidavit of the 1st Respondent in the lower Court since the deponent though not a party had the authority and consent of the Appellant to swear to the affidavit on facts which he witnessed and were within his personal knowledge. The deponent, Bolarin Muyide in paragraph 2 of the counter affidavit in page 36 of the record showed clearly that he had the consent and authority of the 1st Respondent to swear to the affidavit. The averment reads:
That the 1st Respondent is the Area Commander Area G Command of Nigeria Police Force Ogba Ikeja, Lagos and I have the consent and authority of the 1st Respondent who has tight official schedule to make this deposition.”
In the circumstance, I have do difficulty in resolving this issue in favour of the Appellant. Can this be a game changer? This I will consider this later in judgment.
The third issue is the effect of non-compliance with the provision of Order II Rule 3 of the Fundamental Right (Enforcement Procedure) Rules 2009. This rule provides thus:
An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.
The 1st Respondent in his application in the lower Court as Applicant apparently did not comply fully with the above provision. What was missing in the process filed was that the statement did not have the name and the description of the Applicant. There was however a statement except that the statement did not contain the name and the description of the Applicant. If the process the 1st Respondent (Applicant) filed which is contained in pages 10-13 did not contain a statement. I will feel comfortable in invoking Order IX Rule (1) (i) of the Fundamental Right (Enforcement Procedure) Rule 2009. In the instant case, there is a statement except that the statement lacked in some details. In my opinion that is not sufficient to hold that the proceeding is a nullity. The action was properly commenced but an irregularity in the sense that the name of the 1st Respondent as Applicant in the lower Court was not in the Statement. To declare the whole process and preceding a nullity will be going against the well-established principle of law that the Court exist to promote substantial justice and not technical justice. In Alioke vs. Oye & Ors (2018) LPELR-45153 (SC), the apex Court per Bage JSC at page 24 held:
As a Court of law and justice, our duty must be to look beyond procedural technicalities to do substantial justice, particularly where fair-hearing is in issue.
Similarly in Owuru & Anor vs. Adigwu & Anor (2017) LPELR-42763 (SC) per Kekere-Ekun, JSC at page 30 it was held:
It has been said time and again by this Court that Courts must always strive to do substantial justice and avoid reliance on technicalities to truncate a party’s case.
In the circumstance of this case, this third issue I resolve in favour of the Respondent as following the argument of the Appellant will amount to submitting to technical justice over substantial justice. This will be a taboo in our legal system.
The fourth issue is whether bearing in mind the evidence before the lower Court, the Court was right to have given judgment to the 1st Respondent. The main thrust of the reason for the judgment in favour of the 1st Respondent as mentioned above in page 112 of the record is that the Court struck out the counter affidavit of the 1st Respondent in the lower Court. Based on that, the lower Court came to the conclusion that the only evidence available is the evidence of the Applicant and therefore the Court was comfortable in granting the reliefs. In addressing the first issue, I have faulted that finding as I am not of the view that the counter affidavit of the Appellant sworn to by a police officer Bolarinde Muyide on his behalf is valid. In the circumstance, I will consider the averment in the 1st Respondents (Appellant in this appeal) counter affidavit in determining this appeal.
The 1st Respondent counter affidavit in the lower Court was deposed to by Sergeant Bolarinde Muyide attached to the Area G Command Ogba where the incident material to this appeal happened. The counter affidavit is found in pages 36-43 of the record. In paragraphs 5, 6, 8, 9, 12, 13, 16 and 17 of the counter affidavit, it was shown that the 1st Respondent in the lower Court was carrying out his duty as a police officer in investigating the Applicant. The 3rd Respondent in paragraphs 2, 5, 6, 10, 12, 13 and 15 of his counter affidavit confirm the paragraphs of the 1st Respondent mentioned above. All these paragraphs indicate that the Appellant in this appeal was carrying out his duty as a police officer in investigating an alleged crime of affray.
Let us look at the story of the 1st Respondent in this appeal who is Applicant in the lower Court. His affidavit in support is contained in pages 8-10 of the record. The relevant paragraphs are 5,6,7,12,13,14,16,17 and 18. The summary of his story as it relates to the arrest is that he went with his mother to make a complaint of assault. In the process, the Appellant arrested him for allegedly recording the interrogation in his office. He was granted bail the same day. This specifically is the averment in paragraphs 16 and 18 of the affidavit in support. I reproduce the averment for ease of reference:
(16) After I had written my statement, I was locked up in a cell. My sister Bukola Komolafe called some families and with the help of the Assistant Commissioner of police I was released.
(18) The lawyer bailed me out and my mother and I left the police station at about 7.00pm.
This clearly shows that the Applicant was not detained for more than the constitutionally allowed period of 24 hours or maximum 48 hours for such offences that the 1st Respondent in this appeal was charged for. In fact, leaving the averment of the 1st and 3rd Respondents aside, even by the averment of the Applicant, the only grounds upon which the Appellant can be held liable is, if there is evidence that the Applicant was just arrested for no reason. This is not the case, as by paragraph 14 of the affidavit in support, the Applicant knew why he was arrested and asked to make a statement. I reproduce the said paragraph for emphasis: –
As my mum and I were about leaving the 1st Respondents office, with my mum in front of me, the 1st Respondent suddenly charged at me.
He pushed me against the wall and began raining slaps and punches on me; while shouting at me to give him my phone. He claimed that I used my phone to record on video what had been going on inside the office; which I did not. The 1st Respondent seized my phone.
This is the scenario that led to the arrest. If what the Applicant did amount to an offence, by the provision of Section 35 (1) (c) of the 1999 Constitution of Nigeria, the Appellant will not be liable. I reproduce the provision.
35 (1) every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law
(c) for the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, to such extent as may be reasonably necessary to prevent his committing a criminal offence.
What is important here is not whether the 1st Respondent in this appeal is guilty of any offence but that he is reasonably suspected of having committed an offence. In such instance, the Applicant can be arrested provided he is not kept for a period more than the period required by law. Without even considering the counter affidavit of the 1st Respondent and that of the 3rd Respondent, even on the strength of the Applicants affidavit in support, the lower Court was in error to have given judgment to the Applicant, now 1st Respondent on the enforcement of his fundamental right. The law allows the police to investigate the alleged commission of a crime, that right of investigation includes the right of arrest provided it is done within legal limits. This Court in Mitin vs. C.O.P. Bayelsa State & Ors (2017) LPELR-43064 per Hussaini JCA at pages 15-18 held:
The power of arrest of suspected offenders is vested in the police and no one can take that away from them. This general power invested in the police to arrest and detain suspected criminals is statutory. Section 4 of the Police Act Cap 339, LFN, 1990 provides thus: –
The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. Section 29 of the Police Act specifically empower the Police to arrest and detain suspected persons whom the police reasonably suspect to have stolen item in his possession. Decisions such as Alamieyeseigha vs. Igoniwari (2007) 7 NWLR (Pt.) 524; Dokubo Asari vs. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320, 360; Shola Abu vs. COP CHR 18, all go to confirm the powers of arrest and detention vested in the Police…
However, in the exercise of those powers of arrest and detention, the Police need to be cautious in their approach given the provision of Section 35 (1) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended).
The personal liberty of the citizen is guaranteed under Section 35 (1) of the Constitution and same is held as sacrosanct like every other right enshrined in Chapter Iv of the Constitution. These rights are sacred and inalienable and that is why they are fundamental, the violation of which should be viewed as sacrilegious save in the manner the Constitution has recognized. In other words, the right to personal liberty and indeed all other rights enshrined under Part IV of the Constitution of Federal Republic of Nigeria, 1999 (as amended) is not absolute. It admits of some exceptions. See Dokubo Asari vs. Federal Republic of Nigeria (2007) 5 – 6 SC 150, 185.
Similarly the apex Court in Fawehinmi vs. IGP & Ors (2002) 5 SC (Pt. 1) 63, per Uwaifo, JSC held:
Black’s Law Dictionary (supra) at page 1041 says: “Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals and general welfare within constitutional limits and is an essential attribute of government.” Indeed, the police are the outward civil authority of the power and might of a civilized country. The generality of the public is potentially affected one way or another by their action or inaction.
I think it will be a denigration of the aura of authority they represent and a disservice to society to suggest that they can exercise no discretion in their duty of the maintenance of law and order, or, to be, specific, in their investigation of any particular allegation of crime even if it were to be an obvious wild goose chase. I am satisfied that in the performance of their duty to maintain law and order, to investigate allegations of crime and to arrest, the police have and can exercise some measure of discretion. It all depends on the circumstances of every occasion, the best of their capability, the image of the police force and the overall interest of the society.
The Appellant was therefore not breaking any law in arresting the Applicant/1st Respondent when he is suspected of haven committed an offence under the Criminal Law of Lagos State, 2011.
This is more so that the Applicant was released in less than 24 hours. He is on bail and refused to honour the police invitation but rather rushed to Court to enforce his fundamental right. If a person intends to oppose the law or run away from the law, the worst place to come to is the Court. This is because, the Court exist to uphold the law. A person running away from the law should not come to Court because he will certainly be put in its proper place by the Court. This is called a Court of law. What matters here is the law. This is different from other Courts like the long tennis Court or volley ball Court etc. A Court will not spare anyone running away from the law.
Parties should not see Fundamental right proceedings as a ready gate way of escape from the law. In appropriate cases the Court will enforce the fundamental right of a person but it must be made clear that the fundamental right is only fundamental and not absolute. In Ransome-Kuti & Ors vs. A.G. Federation & Ors (1985) 2 NWLR (Pt. 6) 211, Karibi- Whyte, JSC made this point clearly in these words:
A careful reading of the provisions of Chapter III as a whole discloses that the sections in that chapter were designed for the protection of the individual against the harsh and oppressive legislations of the State; and to provide a remedy against the arbitrary exercise of executive power.
In each of these sections, the rights of the citizen declared to be fundamental is subject to the operation of all other valid laws of the State. The relevant Sections are 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 31 . The protection of the rights entrenched in these sections is circumscribed either by exceptions or provisions enabling the interference of the legislature or the executive within the scope of the exceptions indicated.
It is for this reason that in Chike Obi v. D.P.P. (1961) 1 All NLR. 186 Ademola C.J.N., described the freedoms as “ordered freedom.” It can safely be said therefore that the entrenched rights are not absolute and exist in so far as they co-exist with other validly made laws – See Attorney-General of St. Christopher, Nevis & Angiulla v. Reynolds (1980) AC. at p. 654.
For the purpose of this appeal, the issue of all the Respondents in the lower Court swimming and sinking together is not relevant for determination. For the records however, the point is that when parties are jointly and severally sued, the exoneration of one of them from liability does not automatically exonerate the other since they are also sued severally.
I resolve this issue in favour of the Appellant. Haven held that the judgment is against the weight of evidence, which implies that the judgment cannot be supported by evidence, the Court is left with one option and it is to set the judgment aside. In Anya vs. Anya & Ors (2014) LPELR- 22479 (CA), this Court per Mshelia JCA at pages 40- 41 held:
When an appellant employs the phrase that the judgment is against the weight of evidence, it postulates that there was no evidence, which if accepted would support the findings of the trial judge or the inference, which he had made. It could also mean that when the evidence adduced by the appellant is balanced against that adduced by the respondent, the judgment given in favour of the respondent, would be against the weight which should have been given, having regard to the totality of evidence before the Court. See: Mogaji vs. Odofin (1978) 4 SC 94: U.B.N Plc. vs. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640 and Anachuru Anyaoke & Ors. vs. Dr. Felix C. Adi & Ors. (1986) 3 NWLR (Pt. 731).
The phrase also constitutes an attack on the findings of fact made by the trial judge and calls upon the Court of Appeal to make up its mind on the evidence. This, the Court does not disregarding judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it appears that judgment was given against the weight of evidence. See: Balogun vs. Akanji (1988) 1 NWLR (Pt. 70) 301 @ 319. When a judgment is attacked as being against the weight of evidence, the Court of Appeal has a primary role to do the following:
(a) Know the evidence before the trial Court.
(b) Know whether the trial Court accepted or rejected any evidence upon the correct perception.
(c) Know whether the trial Court correctly approached the assessment of the evidence before it and placed the right probative value on it.
(d) Know whether the trial Court used the imaginary scale of justice to weigh the evidence on either side.
(e) Know whether the trial Court appreciated upon the preponderance of evidence on which side the scale weighed, having regard to the burden of proof.”
See also Abisi & Ors. vs. Ekwealor & Ors (1993) 6 NWLR (Pt. 302) 643.
Looking at the totality of this appeal, I am of the firm conviction and view that this appeal has merit and it is therefore allowed. The judgment of the Federal High Court of 31/5/13 is hereby set aside. I make no order as to cost.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother EBIOWEI TOBI, JCA just delivered with which I agree and adopt as mine, I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA afforded me the opportunity of reading in draft before today the lead Judgment Just delivered and I agree with the reasoning and conclusion contained therein, I adopt the Judgment as mine with nothing further to add.
Appearances:
EMMANUEL EZE, Esq. with him, J. O. HODONU, Esq. For Appellant(s)
ONIOLA IRINOYE OJO, Esq. for the 1st Respondent
