ISIAKA ADEBOYE & ORS v. SAHEETO INTERNATIONAL LIMITED & ORS
(2019)LCN/12546(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/721/2015
RATIO
INTERPRETATION: MEANING OF BURDEN OF PROOF
“The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @ 353 D – H, as follows: “…the phrase “burden of proof in civil cases has two distinct and frequently confused meanings. This comprises, firstly, of the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates.” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. ISIAKA ADEBOYE
2. IBRAHIM AZEEZ ALANI
3. ALHAJI SAMOD TELLA – Appellant(s)
AND
1. SAHEETO INTERNATIONAL LIMITED
2. ASP WALE OLATUNBOSUN
3. THE COMMISSIONER OF POLICE – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in consolidated SUITS NO: ID/853M/2013; ID/854M/2013; and ID/855M/2013, delivered by Honourable Justice K. A.Jose (Mrs.) on the 10th day of February, 2015, where in the Court gave judgment in favour of the Respondents.
The material facts leading to this appeal are that the 2nd and 3rd Respondents, acting upon a petition dated 17th June, 2013, invited the 1st and 3rd Appellants to the SCID Panti, Yaba, as part of their investigation into the alleged theft of a car and money belonging to the 1st Respondent by the 2nd Appellant. The 2nd Appellant was subsequently invited and it turned out that he wasn’t the Driver of the 1st Respondent who allegedly committed the offence. Acting on the belief that the foregoing constitutes a breach of their fundamental rights, the Appellants instituted three different fundamental right actions in the lower Court, against the Respondents, which culminated in this appeal. The matters were heard in a consolidated manner and on the 10th of February, 2015, the trial Court dismissed the Appellants claims.
Dissatisfied with the above, the Appellants appealed to this Court vide a Notice of Appeal dated and filed on 27th April, 2015, with four grounds of appeal.
The Appellants Brief settled by Ese James Omokaro of Alex Scott and Partners, is dated and filed on 9th March, 2016, but deemed properly filed on 29th November, 2016.
Appellants counsel formulated two issues for determination to wit:
1. Whether the learned trial Judge was right when she gave judgment in favour of the 1st Respondent even when they failed to respond to the Appellants Application for the enforcement of their fundamental right. (Ground 1)
2. Whether the learned trial Judge was right when she held that the arrest of the Appellants was not wrongful, considering the facts and circumstances of the case. (Grounds 2 and 3)
On the other hand, the 2nd and 3rd Respondents Brief settled by Emmanuel I. Eze Esq., Legal Officer SCIID, is dated and filed on 29th November, 2016. 2nd and 3rd Respondents counsel distilled two issues for determination to wit:
1. Whether the learned trial Judge was not right when she dismissed the Appellants application.
2. Whether the trial Judge was not right when she held that the fundamental rights of the Appellants not violated.
An examination of the two sets of issues raised by each counsel in this appeal reveals that they are substantially the same. I therefore adopt the issues raised by Appellants counsel for the purpose of convenience in the determination of this appeal.
Learned counsel for the Appellants on issue one argued that the failure of the 1st Respondent to respond to the allegations levied against it by the Appellants at trial, to the effect that the 1st Respondent breached Appellants fundamental rights by making a false allegation against the Appellants to the Police, meant that the trial Court ought to have acted upon those allegations.
She relied on: Zangina v. Commissioner for Works, Borno State (2001) 9 NWLR at page 490, par F; NIPCO Plc v. HENSMOR (Nig.) Ltd (2011) All FWLR pp 792-793 pars G-A; and Okonkwo v. FRN (2011) II NWLR (Pt.1258) pp. 245-246, pars F-A.
Learned counsel also argued that the fact that the allegations leading to the arrest of the Appellants turned out to be false, is of the effect that the lower Court ought to have granted the prayers of the Appellants.
On the other hand, learned counsel for the 2nd and 3rd Respondents argued that the fundamental rights of the Appellants are not absolute and that every Citizen of Nigeria has a right to report a reasonable suspicion of commission of crime to the Police.
He relied on Section 35(1)(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned counsel also argued that the trial Court was right to have refused the Appellants application as the Appellants failed to properly establish how their fundamental rights were breached and the fact that the 1st Respondent did not file a counter affidavit did not preclude the trial Court from relying on the facts placed before it by the 2nd and 3rd Respondents.
He relied on:
Fajemirokun v. C.B (C.I) Nig. Ltd. (2002) 10 NWLR (Pt. 774) 95 Ratio 4; Vanguard Media Ltd v. Ajoku (2003) FWLR (Pt. 173) 68 Ratio 4 C.A; Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548 Ratio 7; and Nwaga v. Registered Trustees Recreation Club (2004) FWLR (Pt.190) 1360 Ratio 2 & 6; and Orasamu v. Idowo (1959) 4 FSC 40.
On issue two learned counsel for the Appellants argued that it was wrong for the trial Judge to hold that the failure of the Appellants to file a reply to the assertion in 2nd and 3rd Respondents counter affidavit, wherein they asserted that the Appellants left the Station after making their statements, amounted to an admission of the assertion.
Learned Counsel argued that the correct position of the law is that a reply to a counter affidavit is only necessary where the Affidavit and Counter Affidavit conflict materially, and that the effect of the contrary assertion by the 2nd and 3rd Respondents at trial is that issues had been joined as to time of release, because the Appellants in their Affidavits had clearly stated how long their detention lasted for.
He cited the cases of ASOR v. INEC & Ors (2013) LPELR-20695(CA); and Egesimba v. Onuzubuike (2002) 15 NWLR (Pt. 791) SC. 460.
Learned counsel for the 2nd and 3rd Respondents argued that the fundamental rights of the Appellants were not breached as the 2nd and 3rd Respondents assertions at trial to the effect that the Appellants were not arrested, only invited and that they were released within few hours, were not challenged by the Appellants, hence was admitted.
He cited the case of Azeez v. State (1986) 2 NWLR (Pt.23) 541.
Learned counsel also argued that the 2nd and 3rd Respondents have the power to investigate all complaints/cases of crime reported to them or detected suo motu for possible prosecution where a prima facie case is established.
Section 4 of the Police Act Cap P.19 LFN, 2004; Fawehinmi v. IGP (2000) 7 NWLR (PT. 665) 481 AT 519 – 521;Fawehinmi v. IGP (2002) 7 NWLR (Pt. 767) 606 at 673; Engr Ogbuefi Azuka Onianwa v. Police (2007) CHR 69 at 72; and A. v. Secretary of State for Home Department No. 2 (2006) 1 ALL ER 575.
RESOLUTION OF THE ISSUES
The general and well settled principle with regards to determination of civil matters is that the burden of proof lies on the party who would fail if no evidence is adduced on both sides. This person is usually the Claimant and he either succeeds or fails based on the strength of his own case and not the failure of the Defendant. This means that generally, regardless of whether or not a Defendant appears, a Court is required to carefully examine the case of a Claimant and only grant the claims prayed for, if they are meritorious and backed by evidence.
The principle of law was recently restated by the Apex Court in the case of: NDUUL v. WAYO & ORS (2018) LPELR-45151(SC) (Pp. 51-53, Paras. A-B) where per KEKERE-EKUN, J.S.C., it held thus:
“The first question to consider in resolving this issue is: on whom does the burden of proof lie? Section 133 (1) and (2) of the Evidence Act 2011 provides: 133 (1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to presumptions that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.
The meaning of “burden of proof” was explained by this Court in: Odukwe vs. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 @ 353 D – H, as follows: “…the phrase “burden of proof in civil cases has two distinct and frequently confused meanings. This comprises, firstly, of the burden of proof as a matter of law and the pleadings, usually referred to as the legal burden or the burden of establishing a case and, secondly, the burden of proof in the sense of adducing evidence, usually described as the evidential burden. While the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates. As Aniagolu, JSC explained the issue in Felix O. Osawaru Vs. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145, “In civil cases, while the burden of proof in the sense of establishing the case, initially lies on the plaintiff …, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses.” Thus, the general rule is that he who asserts must prove.
The burden is therefore on the plaintiff to first adduce prima facie evidence in support of his case. Where a prima facie case is made out, the burden shifts to the defence to adduce counter evidence to sustain their defence. Where an allegation is made, positively or negatively and it forms an essential part of a party’s case, the proof of such allegation rests on him. See also: Plateau State of Nig. & Anor. Vs A.G. Federation & Anor. (2006) 3 NWLR (Pt. 967) 345 @ 417 D – F; Imana Vs Robinson (1979) 3 – 4 SC (Reprint) 1. However, the evidential burden of proving particular facts may shift throughout the proceedings. See: Buhari vs. INEC (2008) 19 NWLR (pt. 1120) 246; Okoye vs. Nwankwo (2014) 15 NWLR (pt. 1429) 93; Odukwe vs. Ogunbiyi (supra).”
This Court while determining a similar issue in the case of SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013) LPELR-21414(CA) held thus:
As he did at the trial Court, the Respondent did not file any process to defend or contest this appeal, despite evidence of the service of the processes of Court on him. Of course, the ready inference is that the Respondent is deemed to have admitted the case of the Appellant as presented at the lower Court and even on appeal, as there is no contrary position on which to urge this Court.
9
The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet vs. INEC (2011) All FWLR (pt. 565) 203 “The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.” Nzeribe vs. Dave Engr. Co. Ltd (1994) 8 NWLR (pt. 361) 124. But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proved the claim, as required by law. Elias vs. Omo – Bare (1982) LPELR – SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR – CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (pt. 935) 160; see also Ogunyomi v. Ogundipe (2011) All FWLR (pt. 594) 188, where it was held. “It is the duty of the Appellants as plaintiffs in the lower Court to prove their case … and it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants.”
See:TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR-8142(SC); MARINE GLOBAL SERVICES LTD v. SOUTHERN IJAW LOCAL GOVT. COUNCIL (2018) LPELR-44175(CA); PRESENTATION NATIONAL HIGH SCHOOL & ORS v. OGBEBOR (2018) LPELR-44784(CA); and MAJEKODUNMI & ORS v. OGUNSEYE (2017) LPELR-42547(CA).
There are some exceptions to the above stated rule, one of which is the summary judgment procedure, but none applies to the circumstances of this appeal.
Fundamental Rights proceedings are primarily governed by Fundamental Rights (Enforcement Procedure) Rules, 2009 and there is nothing therein, especially in Order 2 thereof, which is to the effect that failure of a Defendant to defend an application for the enforcement of fundamental rights means the application would be automatically granted.
The rule on affidavits and counter affidavit, which the Appellants are putatively relying on would also not avail them, as that rule is to the effect that when parties have exchanged affidavits or pleadings, failure to deny an assertion would constitute an admission. This is not the case in this appeal.
The fact that the allegation leveled against the 2nd Appellant, by the 1st Respondent, while unfortunate, is not enough to ground a conclusion that the Respondents have breached the fundamental rights of the Appellant. This is so because the fundamental right to freedom of movement which the Appellants are entitled to is limited, and one of its limitation is the power of the Police to question or detain for a limited time in furtherance of its duty to prevent and prosecute crimes. The key consideration cum condition precedent to determining whether the detention in this appeal is a breach of Appellants fundamental rights is not the truth of the allegations, its reasonableness.
This Court succinctly stated this position of the law in the case of thus: EMONENA & ANOR v. IGP & ORS (2016) LPELR-41489 (CA) (P. 13, Paras. C-E) Per NDUKWE-ANYANWU, J.C.A.
“The Courts have held that arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence cannot sue the police in Court for breach of his fundamental rights see Okawo v. Commissioner of Police (2001) 1 CHR pg. 407.”
See: UBADINEKE & ORS v. OBI (2018) LPELR-44473(CA); and LUNA V. COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS (2010) LPELR-8642(CA).
A calm look at the facts in this appeal reveals that the suspicion of the Respondents with regards to the 2nd Appellant was eventually found to be wrong, but it cannot in my view be said to be unreasonable when viewed against the background that it was the names on the curriculum vitae upon which the driver in question was employed that were given to the Police.
Issue two raises in my view the question of the extent of the powers of the police to effect arrest and detention of persons reasonably suspected of having committed a criminal offence.
The powers of the Nigerian Police Force, with regards to crime prevention, detection and prosecution, are very wide indeed, to the extent that the Nigerian Police force has the power to detain and question anyone reasonably suspected to have committed or connected to the commission of a crime, within a limited time frame and in a humane and responsible manner.
The wide nature of the powers of the police is encapsulated in Section 4 of the Police Act, which provides for the general duties of the Police 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, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.
This Court while stressing the nature of the power of the Police, in the case of JIMOH v. JIMOH & ORS (2018) LPELR-43793(CA) (Pp. 30-32, Paras. B-C, Per TSAMMANI, J.C.A., held thus:
“Certainly, by Section 4 of the Police Act, the Police have been given the power to detect and prevent crime, apprehend offenders, preserve law and order, and protect life and properties of citizens. In the case of Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606, the Supreme Court held that: “It is inconceivable that such wide powers and duties of the Police must be exercised and performed without any discretion left to responsible Police operatives. Unless a statute which confers powers or imposes duties expressly or by necessary implication excludes the exercise of discretion, or the duty demanded is such that leaves no room for discretion, it is my view that discretionary powers are implied whenever appropriate, exercised for salutary ends.”
The Police Act has not fixed or stipulated therein, how the Police are to conduct their investigative powers. To that end, the Police carry out their investigation based on the strength or weight of information at their disposal. It is therefore the strength of the information at the disposal of the Police that should determine how they exercise their discretion to investigate or not to investigate. See Olatinwo v. State (2013) 8 NWLR (pt.1355) 126.
Thus, so long as the Police properly exercise their discretion, a complain under the Fundamental Rights (Enforcement Procedure) Rules for breach of the right to personal liberty may not be sustained. This is because, where a crime has been reported, it is within the discretionary powers of the Police under Section 4 of the Police Act to decide whether or not to investigate such crime and to also decide on the strategy or manner in which they will conduct the investigation. In the exercise of such powers the Police have the constitutional powers to arrest and detain persons reasonably suspected of having committed a crime, so long as the detention does not exceed the period allowed by the Constitution. See Section 214(2)(b) of the 1999 Constitution and 4 of the Police Act?
In the instant case, the 6th – 8th Respondents acted on a petition written by the Appellant. Their investigation led to the arrest and probable detention of the Appellant, and the Appellant has not contended that he was detained beyond the period permitted by Section 35(4) of the Constitution. The prove of the offences alleged against the Appellant can only be determined at the trial of the criminal charge. It is thus my view that the 6th – 8th Respondents having acted on the Appellant’s Petition, pursuant to Section 4 of the Police Act, the claim for breach of the Appellant’s right to personal liberty could not be sustained.” See: AKANBI & ORS v. C.O.P KWARA STATE & ORS (2018) LPELR-44049(CA); and MITIN v. C.O.P BAYELSA STATE & ORS (2017) LPELR-43064(CA).
The very same grundnorm which provides for the protection of the Appellants fundamental right to liberty and freedom of movement, also limited the enjoyment of those rights under certain circumstance as shown vide Section 35 of the 1999 Constitution as amended viz:
(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, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.
Now adverting my mind once again to the facts of the case, I do not think the actions of the Respondents particularly the 2nd & 3rd Respondents in inviting and detaining the Appellants for the purposes of investigating the allegation before them do in anyway violates the Appellants right to personal liberty as the actions of the Respondents was in tune with their powers of investigation of crimes.
As I mentioned earlier, the right to personal liberty under Section 35 of the 1999 Constitution as amended is not absolute.
It is against this background that I resolved the issues in favour of the Respondents, dismissed the appeal as lacking in merit and affirmed the decision of the lower Court.
Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Jamiu Yammama Tukur, JCA has succinctly explained and shown by demonstrating apt judicial authorities, that a mere complaint to the Police by a party and their independent power of investigating reasonable suspicion of the commission of a crime within the limits of the law, would not constitute infringement of the right to personal liberty, in his lead judgement, a draft of which I read before now.
In the circumstances of the Appellant’s case, he did not discharge the evidential burden of proving that the suspicion arising from the report/petition or complaint made by the Respondent to the 2nd and 3rd Respondents was not reasonable or that the 2nd and 3rd Respondents acted beyond or in contravention of the law and the Constitution in their investigation of the petition/complaint in which the Appellant’s information was given. See Bassey v. Afia (2010) ALLFWLR (531) 1477 @ 1500-1, Ezeadukwa v. Maduka (1997) 8 NWLR (518) 635 Onah v. Okenwa (2011) ALL FWLR (565) 357 @ 375 and 377. The appeal is dismissed by me too for being devoid of merit in the terms set out in the lead judgement.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., with which I agree with nothing extra to add.
Appearances:
Oboite Efemochiechie For Appellant(s)
Emmanuel Eze for 2nd & 3rd Respondents For Respondent(s)
