IWE v. FRANKCHRIS PETROLEUM LTD & ORS (2022)

IWE v. FRANKCHRIS PETROLEUM LTD & ORS

(2022)LCN/16918(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, January 17, 2022

CA/AS/329/2020

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

HARRISON IWE APPELANT(S)

And

1. FRANKCHRIS PETROLEUM LIMITED 2. CORPORAL SALIU ADAMS 3. THE POLICE AREA COMMANDER, WARRI RESPONDENT(S)

RATIO

WHETHER OR NOT AFFIDAVITS ARE PLEADINGS IN AN ORIGINATING SUMMONS APPLICATION

It is trite that affidavits are pleadings in an originating summons’ application; they are like statement of claim to a writ of summons.
In ALHAJI SANI ABUBAKAR DANLADI v BARR NASIRU AUDU DANGIRI & ORS (2014) LPELR-24020 (SC), per KEKERE-EKUN, JSC held that where a suit is commenced by originating summons it is fought on the basis of affidavit.
Also, in I. N. ATTOHFUDI v THE REG TRUSTEE OF THE INSTITUTE OF CERTIFIED (2015) LPELR–25908 (CA) the Court held thus;
“When the originating process before a Court is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter-affidavits serve as the statement of defence. Therefore, the affidavits are the pleadings for the case… NNPC vs Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) Pg 148 at 189 Para E-F. It is trite law that pleadings before the Court is the back bone upon which every action is based. Where there is no affidavit to an originating summons then the Court will have nothing before it to adjudicate on.”
per ABBA AJI, JCA (PP. 8–9, PARAS. E–F). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT DETERMINATION IS PREMISED ON AFFIDAVIT EVIDENCE IN AN APPLICATION FOR FUNDAMENTAL HUMAN RIGHTS ENFORCEMENT

Bringing it down home, in an application for fundamental human rights enforcement in the case of HRH EZE J.E. UKAOBASI v BERTHRAM EZIMORA & ORS (2016) LPELR-40174 (CA), this honourable Court held that the law is well settled that its determination is premised on the affidavit evidence produced and placed before the Court. It is the affidavit evidence that the Court must meticulously peruse to reach a just determination of the application.
See also; BASSEY NKATA MBANG v W/PC JANET & ORS (2015) ALL FWLR (PT. 767) 766 AT 784.
In a Fundamental Human Rights (Enforcement Procedure) application, the affidavits or the statements constitute the evidence. See CHIEF J. I. ILONZE & ORS v VINCENT ONWUALU (2015) LPELR–25754 (CA); ICHIMA ATHANISIUS v CHIDEBERE EWA & ORS (2015) LPELR-40589 (CA). PER OBASEKI-ADEJUMO, J.C.A.

THE AWARD OF DAMAGES IN THE CASE OF BREACH OF FUNDAMENTAL RIGHTS

The award of damages in case of breach of fundamental rights must be such as would constitute a fair balance estimate of injuries suffered by the Applicant as due to the Respondent’s unlawful conduct. In considering the damages to be awarded the case of AJAYI v. A.G FEDERATION 1998 1 HRLRA 373 is a guide as relied on in IKECHUCKWU ATTAH v IGP (2015) LPELR–24656 (CA) that; a) the frequency of violation in recent times, b) continual depreciation for the naira, c) motivation for the violation, d) undeserved embarrassment meted out to the Applicant including pecuniary losses and for the conduct of the parties generally, particularly the 2nd Respondent. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the ruling of Hon. Justice M. N. OBI of the Delta State High Court, Warri Judicial division delivered on 20th May 2020,

The Appellant’s claim at the lower Court was under a fundamental Human rights application as follows;
1. A Declaration that the acts of the 2nd Respondent who is an officer of the 3rd Respondent and the Mobile Police (Mopol) Security guard attached to the 1st Respondent’s in harassing, assaulting, arresting illegally and detaining the Applicant in sometime 29th of March, 2019 is illegal, unconstitutional, null and void.
2. The sum of N5,000,000.00 (FIVE MILLION NAIRA) as damages suffered by the Applicant as a result of the illegal and unconstitutional violation of his Fundamental Rights by the 2nd Respondents who is the 1st Respondent’s Mobile Police guard and acting on behalf of the 1st Respondent when he (the Applicant) was unlawfully assaulted, beaten and taken to a bush path at an unknown location at Otokutu Town on the night of 29th March, 2019.
3. An Order of this Honourable Court on the Respondents to tender an apology through any News medium within Warri to the Applicant for the assault, insults, inhuman treatment and the unlawful and illegal detention of the Applicant by the 2nd Respondent.

FACTS
The Appellant who was Claimant at the lower Court came into the station to buy fuel and he had queued on the line for fuel by the pump but had to use the POS inside the station and came back to take his position on the queue but others protested that he just came to join the queue, all explanations fell on deaf ears and the police guarding and providing security for the station pulled him out and started rough handling him even the pump attendants and manger who were around saw what happened decided to keep silent.

The police called his colleagues to join him discipline the Appellant. The Appellant pleaded even his wife came and pleaded, others tried to intervene but the 2nd Respondent was adamant and drove the Appellant to the outskirt of the town, while there, the Appellant’s uncle who is also a security personnel got wind of it and called the 2nd Respondent asking him to leave the Appellant. At that stage, they panicked and dropped him at the outskirt and notified the civil defence who came to his rescue. The Appellant irked by the treatment meted on him filed an action for breach of his fundamental rights.

The lower Court ruled against him and dismissed the application hence the Applicant appealed via notice of appeal filed on 3rd July, 2020.

Sequel to rules of Court, the parties exchanged briefs; the Appellant’s brief & Appellant’s reply brief to Respondents’ brief was filed on 8th March, 2021 and 1st September, 2021 respectively and settled by Onoriode W. Ewenode of O. W. Ewenode & Co wherein he distilled 4 issues for determination thus;
1. WHETHER THE LEARNED TRIAL JUDGE’S FAILURE TO RELY AND ACT UPON THE UNCHALLENGED FURTHER AFFIDAVITS OF BOTH ITEPU MICHAEL AND MRS UFUOMA HARRISON IWE WHO WITNESSED THE INCIDENT AS WELL AS MAINTAINED THAT THE 2ND RESPONDENT WORKS WITH THE 1ST RESPONDENT, NOT WRONG IN LAW (DISTILLED FROM.(GROUNDS 1, 2, 3 & 4).
2. WAS THE LEARNED TRIAL JUDGE NOT WRONG IN NOT CONSIDERING EXHIBIT A WHEN THE PARTIES DID NOT DISPUTE SAME BUT ON HIS OWN RAISED ISSUE OF PAYMENT RECEIPT? (GROUND 5).
3. WHETHER THE LEARNED TRIAL JUDGE NOT WRONG IN LAW TO HAVE ALSO SUO MOTU RAISE AND RESOLVE THE ISSUES OF MEDICAL AND POLICE REPORT OF THE INCIDENT AND AS A GROUND FOR THE DISMISSAL OF THE APPELLANT’S CASE (GROUNDS 6 & 7).
4. WAS THE LEARNED TRIAL JUDGE NOT WRONG TO HAVE DISMISSED THE APPELLANT’S APPLICATION WITHOUT PROPERLY EVALUATING THE EVIDENCE BEFORE HIM? (GROUND 8).

While the 1st Respondent filed his brief on 22nd June, 2021 which was settled by Chief I. A. Atikueke of Chief Atikueke & Co wherein he formulated one issue for determination thus;
“Whether from the affidavit evidence before the Court below, the judgment of the lower Court in this suit is not justified”

The 2nd & 3rd Respondents filed their brief on 1st April, 2021 which was settled by S. B. Irabor (DSP) Esq of the Legal Department Nigerian Police Command wherein he distilled an issue for determination;
“Whether the 3rd Respondent is vicariously liable for the purported violation of the Appellant’s rights”

APPELLANT’S ARGUMENTS
ISSUE 1
Appellant submitted that the lower Court erred in law and against the interest of justice, when he failed to rely and act upon the two unchallenged further affidavit of the Appellant’s witnesses who gave a vivid account of the incident. He cited FAMESE & ANOR v KAYODE & ANOR (2017) LPELR–43233 (CA) 1 AT P8; ADEBOWALE v OLUWADAMILOLA (2017) LPELR-42696 (CA) 1 in aid.

He stated that he knew the 2nd Respondent and described him in his affidavit while his wife Ufuoma Harrison also gave an account of how the Appellant was driven away despite her pleas in an affidavit yet the lower Court ignored this evidence. He referred to the stand of an unchallenged affidavit in law, that the lower Court ought to have upheld their claims.

ISSUE 2
Appellant submitted that the lower Court erred in law in failing to consider Exhibit A which was not disputed by parties. Exhibit A is the debit from the transaction between the Appellant and the 1st Respondent, and it was attached by both the Appellant and 1st Respondent as evidence of the transaction. There was no dispute as regards the transaction. He further stated that the lower Court raised it suo motu and resolved same on his own without affording the Appellant the opportunity to be heard on the issue, the case of LEADERS & CO LTD & ANOR v BAMAIYI (2010) 18 NWLR (PT 1225) 329 was relied on in aid

Appellant argued that the decision was based largely on the payment receipt which the lower Court alone raised; he referred to page 68 lines 2–4 and 7-8. This was precarious and prejudicial to the Appellant when the issue by parties was not on whether payment was made or not.

Appellant posited that the lower Court captured on the record that both sides agreed that the Applicant’s transaction was with a POS and the lower Court came to a perverse finding. He argued that the Appellant had in paragraphs 4 & 5 of his reply to 1st Respondent’s counter-affidavit at page 29 of the record which cleared any doubt that he got Exhibit A due to telephone network issues which is common to all and the Court can take judicial knowledge of.

He stated further that the Appellant went to the filling station on 29th March, 2019 in the evening from paragraph 5 at page 5 of records and the 1st Respondent agreed in page 40 of record, paragraph 8 of his counter-affidavit when he said its peak hours when they experience queues is in the morning and evenings.

ISSUE 3
Appellant argued that the lower Court again raised the issues of medical and police reports of the incidents suo motu and dismissed the Appellant’s case without giving him the opportunity of being heard on the issues. He referred to page 68 lines 4-8 that the lower Court went on to discredit the party’s case thereby helping the case of the Respondents without inviting parties for addresses on the issues and therefore breached the right of fair hearing, he cited the cases of AUTO IMPORTS v ADEBAYO & ORS (2002) LPELR-6343 (SC) P55–56; EFFIOM & ORS v CROSIEC & ANOR (2010) 14 NWLR PT 1213 P 106; WAGBATSOMA v FRN (2018) LPELR–43722 (SC); IWUOHA & ANOR v NIPOST & ANOR (2003) 8 NWLR PT 822 P308 in aid of his submission.

He argued further that there is nowhere the Fundamental Human Rights Enforcement Procedure Rules makes mandatory or conditional precedent that for an enforcement application the medical or police report must be attached before such rights can be enforced; he relied on SKYE BANK PLC v NJOKU & ORS 2016 LPELR-40447 (CA); 1 ORDER II OF FRHEP RULES 2009 AND COMBINED PROVISIONS OF SECTION 6 (1) AND PREAMBLES OF FRHEP RULES; IGBOKWE v EDOM & ORS (2015) LPELR-25576 (CA) 1.

In addition, he stated that the case of the Appellant was for breach of rights to human dignity, personal liberty and freedom of movement which were breached by the Respondents in a dehumanizing manner, he did not make a case for grievous bodily injury that require medical attention as the Court made out to be. Appellant opined that the lower Court failed to avert his attention to the preambles to the Fundamental Human Rights Enforcement Procedure Rules and Order II Rule 1 of the Fundamental Human Rights Enforcement Procedure Rules, 2009 therefore he reached a wrong decision.

ISSUE 4
Appellant contended strongly that the lower Court dismissed the application without properly evaluating the evidence before him. He referred to paragraph 5 of the supporting affidavit and paragraphs 4-5 of the Appellant’s reply to the counter-affidavit at page 29 of records.

He further contended that the lower Court had held that he believed the evidence of the Appellant’s witness; MR ITEPU MICHAEL on what he saw, before delivery of judgment and they weighed heavily on his mind but made a u-turn a few months later by dismissing the Appellant’s case at pages 59-62 of the record. Counsel posited that should the lower Court had calmly read through the affidavits and that of the 1st Respondent, he would have evaluated the evidence and weighed against the 1st Respondent’s evidence and arrived at a just decision. Relying on MOHAMMED v ABDULKADIR & ORS (2008) 4 NWLR (PT 1076) PG 111 OR (2007)) LPELR-8994 (CA) 47; HAMZA v KURE (2010) LPELR-1351 (SC) 1; YUSUF v NIGERIAN TOBACCO COMPANY LTD (1977) 6 (SC) PG 25; ATUYEYE v ASHAMU (1987) 1 NWLR (PT49) PG 267 SC; TINUBU v KHALIL & DIBBO TRANSPORT LTD (2000) 11 NWLR (PT 677) 171; LAGGA v SARHUNA (2008) LPELR-1740 (SC) 1; ANEKWE & ANOR v NWEKE (2014) LPELR-22697 (SC) 1; MARAFA & ORS v DAN ALHAJI & ORS (2019) LPELR (CA) 1; FATUADE v ONWOAMANAM (1990) LPELR I 1253 (SC) 1; ELEZUA v EZE & ORS (2019) LPELR-49473 (CA) 11–12; OLAOSUN V OGUNSINA (2018) LPELR–45031 (CA) 1 15–16; ADEGUNLE v GOVERNOR OF LAGOS STATE & ORS (2019) LPELR-48013 (CA) 1 AT P59-59.
He urged the Court to resolve the issue in favour of the Appellant.

1ST RESPONDENT’S ARGUMENT
1st Respondent referred to the affidavit evidence at the lower Court and the judgment delivered thereof and submitted that it was justified in law, he stated that the burden of proof rested on the Appellant, he relied on JOLASUN v BAMGBOYE (2011) ALL FWLR PT 595 PG 203. He referred to Order ll Rule 3 of the Fundamental Human Right (Enforcement Procedure), that the Appellant failed to prove his case, he deposed in paragraph 3 that the 2nd Respondent as a mobile police officer assigned to guard the petrol station which was denied by the 1st Respondent in paragraph 19 of the counter-affidavit deposed to by the Manager of the station; Mr. Collins Iluwa and under this circumstances the Appellant had an obligation to furnish the Court that the police officer was assigned to and works for the 1st Respondent, he cited AREGBESOLA v OYINLOLA (2012) ALL NLR; ADESEUN v ILAKA (2011) ALL FWLR (PT 6000) 1313 AT 1326 in aid.

In addition, he stated that the Appellant filed his application with an affidavit deposed by him and one Itepu Michael and Mrs. Ufuoma Harrison Iwe who are not parties to the suit to file different affidavits on the same facts in a further affidavit, that the 1st Respondent could not respond to the different affidavits, he cited UWA v AKPAN (2011) ALL FWLR PART 575, page 401 AT 416.

On the other hand, he posited that since the affidavits were on the same facts he could respond to one for all others.

On Exhibit A, the debit alert receipt attached to the application, 1st Respondent contended that on the face of the Exhibit, the facts are radically in opposition to the contention of the Appellant he relied on ONYA v OGBUJI 2011 AFWLR PT 556 AT PAGE 493 AT 512.

1st Respondent contended that issues were not joined on Exhibit A, that he said he received the alert the next day; 30th March, 2019 when the event occurred on the 29th March 2019, nothing can change the facts contained. He cited BULLET INT’L NIGERIA LIMITED v OLANIYI (2007) VOL 269 to submit that the date of event has not been proved and the lower Court was right to have queried same, he stood on Section 149 (d) of the Evidence Act, that the Appellant ought to produce the POS receipt and failure to do same raises presumption that if produced would be unfavourable to him. He further cited JALLCO LIMITED v OWONIBOYS TECHNICAL SERVICES LIMITED (1995) 4 NWLR (PT 391) PG 534AT 546 CH.

Counsel posited that the main controversy is the date the event occurred, and that the lower Court evaluated the evidence on record properly, he relied on AYORINDE v AYORINDE (2011) ALL FWLR PT 563 AT 1893; BALOGUN v AGBOOLA (1974)10SC 111.

1st Respondent’s Counsel referred to paragraphs 11-14 of the affidavit at page 6 of the records and submitted that it shows that Appellant was heavily beaten by a group or battalion of police officers, that there was no attached photographs of bodily injury and no hospital receipt for treatment.
In conclusion, he submitted that the Court appropriately evaluated the affidavit evidence.

2ND & 3RD RESPONDENT‘S ARGUMENT
2nd & 3rd Respondents made it clear that they did not border challenging the Appellant’s case at the trial Court They also did not file any counter-affidavit or written address.

Counsel submitted that the 3rd Respondent who is the Police Area Commander, Warri is not vicariously liable for the alleged violation of the Appellant’s rights.

He stated that their position is anchored on the fact that there is no evidence before the Court that the 3rd Respondent sent the 2nd Respondent to violate the rights of the Appellant, since the 3rd Respondent has no direct control of the 2nd Respondent who is with and on a lawful duty with the 1st Respondent.

The 2nd Respondent submitted that where a police officer is assigned on a duty to a person, firm, company or organization, such police officer on duty is on the direct control of the person, firm, company and/or organization to which he is assigned and the Nigeria police force will not be held liable for any act of indiscipline, wrongful act, conduct or breach of another person’s fundamental rights committed by the police officer while acting or working for such person, firm, company or organization. Relying on ZANG & ANOR v ITUMA & ORS (2014) LPELR-23521 (CA) 1 AT 30-31.

2nd & 3rd Respondents posited that upon the above authority, any firm will be liable for any wrong committed or alleged to have been committed as in this instant case, by the said officer who at the material time is on guard duty and he is under the direct control and supervision of the person, firm, company or organization at the time the alleged infringement of the rights occurred.

2nd & 3rd Respondents argued that the 1st Respondent has now become the second master of the 2nd Respondent and any wrongful acts then becomes the responsibility of the second master to whom he is assigned at the time and he is liable for any acts of infringement of the third party while working for the second Master.

Irabor of counsel concluded that the position of the law is as stated in ZANG & ANOR v ITUMA & ORS (2014) LPELR-23521 and urged the Court to help the Nigeria police force to stem the tide and hold that the 3rd Respondent will not be liable for the acts of the 2nd Respondent who is assigned to the 1st Respondent. He urged the 3rd Respondent be dismissed.

REPLY
Appellant submitted on the 1st Respondent’s brief that the sole issues distilled was not from any of the Appellant’s grounds of appeal and the 1st Respondent neither cross-appealed nor filed a Respondent’s notice.

He contended that it is liable to be discountenanced and struck out. The cases of A.G FED v GUARDIAN NEWSPAPER LTD & ORS (1999) LPELR-3162 (SC) P54; ADIGUN v AYINDE & ORS (1993) LPELR–678 (SC) 33; ANKELI v EKANI (2020) LPELR–49988 (CA) 1; ADEBIYI v. UMAR (2012) LPELR-7998 (CA) were relied on.

Appellant’s counsel posited that having not sought leave of Court to raise and argue a fresh point of law which was not canvassed at the lower Court.

He further submitted that the fresh issue of non-compliance with Order ll Rule 3 of Fundamental Human Rights (Enforcement Procedure) Rules was not raised at the lower Court and cannot be raised for the first time at the appellate Court without first seeking leave to do so. He cited GBADAMOSI v DAIRO (2007) LPELR-135 (SC) 24, PARA C–D; AFOLABI v OLA (2016) LPELR-40186 (CA); ADO-IBRAHIM v ADO IBRAHIM (2014) LPELR-22850 (CA) 13; AGBITI v NIGERIAN NAVY (2011) LPELR-2944 (SC) 24; CHARLES v STATE OF LAGOS (2019) LPELR–49295 (CA) 21; COLLINS COMMERMEX NIGERIA LTD & ANOR v SKYE BANK PLC (2019) LPELR–46892 (CA) in aid of his submission.

In reply on merits of the issue, counsel submitted that the Appellant established that the 2nd Respondent works for and is still working till date, the 1st Respondent.

In addition, the 1st Respondent failed to rebut the serious averment that the 2nd Respondent assigned him to the 1st Respondent, he referred to paragraphs 4, 5, 9, 14, 15 & 16 of the Appellant’s reply including paragraphs 21-25 of the further affidavits at pages 9-13 to 29-32 of the record.

Appellant further submitted that the 1st Respondent has lost its right to complain and challenge the alleged non-compliance with the provision of Order II Rule 3 of Fundamental Human Rights (Enforcement Procedure) 2009 having taken steps to filing counter-affidavit, written address and adopting arguments without complain, he cited; GOVT EKITI STATE & ORS v OSAYOMI & ORS (2004) LPELR-5680 (A15); GBADAMOSI v DAIRO (2007) LPELR-1315 (SC) 24 in aid.

Appellant further argued that there is nothing in the Fundamental Human Rights (Enforcement Procedure) Rules that forbids the use of further affidavit, instead, it encourages it. He referred to Order II Rule 7 & Order VI Rule 2 & 5 of Fundamental Human Rights Enforcement Procedure Rules.

He further cited Order IX Rule 1 of FHREP Rules, 2009 and submitted that the 1st Respondent ought to have responded to the averments in the further affidavit.

Appellant argued that the 1st Respondent was the custodian of the POS machine used and if the Appellant was not correct he could have produced his counter copy to show the date of the event as contended and that Section 149 (d) operated against the 1st Respondent. Appellant submitted that both parties had admitted that the Appellant was present at the station; the issue of date was not a major issue as the 1st Respondent made heavy weather of.

He distinguished that the cases cited were not applicable and the admission and self–indictment of the 1st Respondent in his brief in raising the issue of hospital and treatment, non-report of the incident to the police amounted to admission against self. He further stated that the lower Court raised the issue not arising from the affidavit evidence of parties before him, but from the 1st Respondent’s written address which was not contained in the counter affidavit, thereby substituting the written address for evidence that ought to be led at trial.
He urged that the arguments be discountenanced.

RESOLUTION.
The first port of call is the objection to the lone issue of the 1st Respondent raised by the Appellant in its reply brief, I have examined the lone issue, it is a complaint “that the Appellant failed to comply with Order ll Rule 1 of the FHREP Rules’’ which requires that an application shall be supported by an affidavit setting out facts upon which the application is made.

The Appellant has objected that it is a fresh issue and it does not flow from his grounds of appeal therefore, having not sought leave to argue same it should be discountenanced.

I have perused the notice of appeal filed on 3rd July, 2020 at pages 70-75 of the records and find that ground two accommodates this issue. It reads thus;
The learned trial Judge erred in law when he did not rely on the unchallenged affidavit evidence of both Itepu Michael and Mrs. Ufuoma Harrison Iwe who witnessed the incident.
PARTICULARS OF ERROR
1. ……..
2. …..
3. The trial Court ought to have relied on the unchallenged affidavit evidence of both Mr. Itekpu and Mrs. Ufoma Harrison Iwe and given judgments in favour of the Appellant.
4. The learned trial Court did not apply the mandatory provision of Order vii Rules 3 of the FHREP Rules, 2009

The issue of the 1st Respondent was that the Appellant did not comply with the mode of commencement in that he filed more than one affidavit as Order ll Rule 3. While in Order Vii Rule 3, the issue is that the Court can rely on the evidence in the absence of a counter-affidavit. Therefore, in my view, the lone issue flows from this ground which deals with the evidence presented by the Appellant which the lower Court discountenanced and Respondents did not respond to.
I shall overrule that objection and hear the appeal on its merits

The issues distilled by parties are interwoven; 1st Respondent’s issue will be subsumed in issue one of the Appellant while 2nd & 3rd Respondents’ issues are consequences if the appeal succeeds. Therefore, I shall resolve the appeal on the Appellant’s issues in resolving issues 1, 2 & 4 which flows from the same evidence together and issue 3 alone, while considering the Respondents’ issues along with it.

ISSUES 1, 2 & 4
The Appellant commenced the application by filing an Originating motion with three reliefs all on fundamental human rights statement pursuant to Order ll Rule 3, affidavit of 35 paragraphs pursuant to Order ll Rule iv of Fundamental Human Rights (Enforcement Procedure) Rules 2009, two further affidavits deposed to by Itekpu Micheal of 28 paragraphs, and Mrs. Ufuoma Harrison Iwe the wife of the Applicant/Appellant; see pages 1-13 of the record.

Order 2 Rule 3 of the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 provides the mode of commencement 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 relief are sought and supported by an affidavit setting out the facts upon which the application is made.”

Therefore, from pages 1-7 of the records, the Applicant/Appellant has complied with the mode and form of commencement.

The Appellant went further to file further affidavits of eye witnesses, these were the motorbike driver who brought him to the station and waited to take him back after buying fuel and his wife who was called to the scene and pleaded with the 2nd Respondent to let go of her husband.

It is trite that affidavits are pleadings in an originating summons’ application; they are like statement of claim to a writ of summons.
In ALHAJI SANI ABUBAKAR DANLADI v BARR NASIRU AUDU DANGIRI & ORS (2014) LPELR-24020 (SC), per KEKERE-EKUN, JSC held that where a suit is commenced by originating summons it is fought on the basis of affidavit.
Also, in I. N. ATTOHFUDI v THE REG TRUSTEE OF THE INSTITUTE OF CERTIFIED (2015) LPELR–25908 (CA) the Court held thus;
“When the originating process before a Court is an originating summons, the affidavits filed in support serve as the statement of claim, while the counter-affidavits serve as the statement of defence. Therefore, the affidavits are the pleadings for the case… NNPC vs Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) Pg 148 at 189 Para E-F. It is trite law that pleadings before the Court is the back bone upon which every action is based. Where there is no affidavit to an originating summons then the Court will have nothing before it to adjudicate on.”
per ABBA AJI, JCA (PP. 8–9, PARAS. E–F).

Bringing it down home, in an application for fundamental human rights enforcement in the case of HRH EZE J.E. UKAOBASI v BERTHRAM EZIMORA & ORS (2016) LPELR-40174 (CA), this honourable Court held that the law is well settled that its determination is premised on the affidavit evidence produced and placed before the Court. It is the affidavit evidence that the Court must meticulously peruse to reach a just determination of the application.
See also; BASSEY NKATA MBANG v W/PC JANET & ORS (2015) ALL FWLR (PT. 767) 766 AT 784.
In a Fundamental Human Rights (Enforcement Procedure) application, the affidavits or the statements constitute the evidence. See CHIEF J. I. ILONZE & ORS v VINCENT ONWUALU (2015) LPELR–25754 (CA); ICHIMA ATHANISIUS v CHIDEBERE EWA & ORS (2015) LPELR-40589 (CA).

Therefore, the mode of commencement is as stated in Order 2, the Appellant’s case falls in rules 2, 3, 4 & 5. The Appellant filed his originating summons together with a statement of facts, his own affidavit of statement and two affidavits of eye witnesses’ report of facts and a verifying affidavit. In my view, he had complied with the requirements of commencement at the stage he filed his affidavit of facts and verified same, the additional affidavits were to emphasize facts he was not in a position to assert.

The lower Court in its judgment in line two thereof noted erroneously that the “the said Originating summons is not supported with an affidavit” and at page 65 of the record line 19, he stated thus;
“Applicant filed three supporting affidavits deposed to by himself, his wife and one Itepu Michael setting out the facts upon which the application was made. Attached to the affidavit is Exhibit A as well as a written address.’’

As stated above, pages 1-2 is the Originating summons, pages 3-4 is the statement pursuant to Order II Rule 3 of Fundamental Human Rights (Enforcement Procedure) Rules 2009, page 5 is the Affidavit of the Appellant pursuant to Order II Rule 4–8, pages 9-11 is the further affidavit of Itekpu Michael, pages 12–13 is the further affidavit of Mrs. Ufuoma Harrison Iwe, pages 14-17 is affidavit verifying/setting out the facts/grounds upon which application is made, page 18–24 is the written address in support of and page 25 is the receipt marked Exhibit A.

In HRH EZE (DR) PETER OPARA & ANOR v DIAMOND BANK PLC & ANOR (2011) LPELR–42689 (CA) this Court held that Courts rely on facts contained in the affidavits for and against the application in determining these applications.

In my view, there was compliance and in that case the parties cannot be heard to say the two eye witnesses’ affidavit were not part of the procedure, having not reacted, they are deemed to have admitted the facts to that extent. I have also read the judgment and do not find anywhere the Court raised issues on this but the Court did not consider them in the evaluation of facts. In addition, it is observed that the 2nd & 3rd Respondents did not file any counter-affidavit or address despite service on them but the Court ignored the implication when they were the main object of the application, it means they admitted the facts of the Appellant. The 1st Respondent filed a counter-affidavit to only the Appellant’s affidavit leaving the other two affidavits unchallenged. While the Appellant filed a reply to the counter-affidavit but the lower Court regrettably jumped into the arena without cross-checking the affidavit evidence and evaluating the implications and positions in law and made a case for the 1st Respondent and 2nd & 3rd Respondents who did not file anything thereby occasioning a miscarriage of justice. He made a case for them. The learned trial Judge ignored the purpose of the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 and its objective.

MBABA JCA held in SKYE BANK PLC v EMERSON NJOKU & ORS (2016) LPELR-40447 (CA) thus;
“…I must start by stating the obvious, that fundamental rights enforcement procedure is sui generis being specially and specifically designed, with its own unique rules by the constitution, to address issues of fundamental rights of persons protected under the constitution. Of course, consideration of issues founded on breaches must be handled within the exclusive confines of fundamental rights enforcement Rules of 2009 rules, which actually came to correct some perceived wrongs and hardship which the 1979 rules (fashioned after 1979 constitution) caused the Applicants seeking enforcement of their fundamental rights especially in the area of adherence to undue technicalities …..”

The Applicant deposed in paragraph 5 of his affidavit that on the evening of the 29th day of March 2019, he went to the station on the 29th to buy fuel and paid via POS but only got the alert on his phone on the 30th due to network issues, he attached Exhibit A. Exhibit A is dated 30th March 2019, time of alert is 10:09am. See page 25 of record on an access mobile bank, paragraphs 5 & 6 of the Appellant’s affidavit at page 5. The counter-affidavit of the 1st Respondent deposed to by the manager of the station Mr. Collins in paragraphs 6 & 7 at page 40 of the record, he stated thus;
6. That I know as a fact that the applicant came to the 1st Respondent’s filling station to purchase fuel on the 30th day of March 2019 and not on 29th day of March 2019 as being canvassed in the affidavit
7. That the APPLICANT came into the office to make payment of N5000.00 (five thousand naira) through our POS Platform and thereafter went outside. The payment receipt is attached to the affidavit as Exhibit A.

The learned trial Court did not evaluate this affidavit evidence neither did he scrutinize the said Exhibit A. The Appellant filed a reply to the counter-affidavit and in paragraph 3 thereof at page 29 of the records, he maintained thus;
4. That contrary to the deposition in paragraph 6, I went to the filling station on the 29th day of March, 2019 to purchase the fuel and not on the 30th day of March, 2019.
5. That in further response to paragraph 6, I made payment of the fuel purchased via POS but I did not receive the debit alert until the next day 30th day March 2019, due to mobile network issues which is a common fact known to all

Now, issues have been joined by parties on the date of buying fuel, it means having attached Exhibit A it behoves on the 1st Respondent who disputes the time to produce same.

I have examined the affidavit evidence, the Appellant says it was in the evening, Itekpu and Mrs. Harrison Iwe stated that it was on the 29th of March, 2019. Exhibit A reads 30th of March, 2019, 10am. Therefore, it bears out the evidence of the Appellant that he bought in the evening but received alert on the next date, one would have expected the 1st Respondent to produce its receipt with which they paid and his counterpart copy of the POS receipt. The burden at this stage shifted to the 1st Respondent to prove that what he stated is the correct one. In MAMMAN MUSA & ANOR v MOHAMMED ABDULLAHI & ORS (2008) LPELR–4562 (CA) per OMOLEYE, JCA this Court held that;
“…The law that is trite in this regard is simply that where in a case the plaintiff discharges the burden of proof on him, the burden shifts to the defendant to rebut the plaintiff’s case.”
See; DABO v ABDULLAHI (2005) 7 NWLR (PT 923) P 181; ITAUMA v AKPE–IME (2000) LPELR-1557 (SC); BUHARI & ANOR v OBASANJO & ORS (2005) LPELR–815 (SC); GOODWILL & TRUST INVESTMENT LTD & V WITT & BUSH LTD (2011) LPELR–1333 (SC).

The learned trial Judge at pages 67–68 had this to say by way of evaluation;
“The both sides agree that the applicant’s transaction was with a POS. The POS receipt issued after the transaction would have shown the date the incident allegedly took place, there is no explanation from the applicant as to where the POS receipt is and no explanation why the matter was not reported to the police there was also no evidence as to whether he went to receive medical attention as a result of the kind of beating he allegedly received. This would have given credence to his case as to when the incident took place and the fact that he was beaten.
The applicant’s uncle, chief security officer with DESOPADEC allegedly put a call through to the 2nd Respondent. There was no explanation as to how his uncle got the telephone number of the 2nd Respondent, what is more, the name of the 2nd Respondent was allegedly obtained from what the applicant refers to as Truecaller, see paragraph 23 of the applicant’s affidavit. Is a true caller a mobile network with which everyone is statutory bound to register their numbers with? There are several missing pieces of the puzzle that does not make the story of the applicant add up. So a police officer without provocation just for the purposes of torturing the applicant left his post where he was allegedly assigned to, jumped into a van with his colleagues and took the applicant to a bush path… There is no documentation to show that the incident actually took place on 29th of March 2019. Its my candid view that the Applicant’s version does not appear plausible.”
The 1st Respondent appears believable….’’

I have reproduced extensively the evaluation of the trial Judge for clarity purposes, there was no time the affidavits were referred to, the learned trial Judge jumped into the arena and made a case for the 1st Respondent by misplacing the burden when it is common knowledge that a POS produces in duplicates like any other receipt one for the customer and the other for the owner/custodian of the POS, therefore it behoves on him to produce what was generated from the POS which will show the date of actual purchase. The customer can only tender the evidence of a debit to the 1st Respondent in proof of same even if he cannot produce the receipt of the POS, for his purpose it is sufficient there was a transaction between the two, it then falls on he who disputes the terms of such to show his, having relied on the mobile alert of the Appellant and not the detailed receipt of the POS smacks of a mischief caught by Section 149 (d) of the 2011 Evidence Act and I so hold.

It is crystal clear that the lower Court ignored the additional affidavit evidence of the Appellant in a consideration of the Appellant’s case and came to a wrong evaluation of the facts before him and failure of which amounts to a miscarriage of justice, see conclusion.

In addition, the lower Court formulated the issue of payment and date for parties, in asking questions suo motu; whether he reported to the police or medical authorities. The Applicant founded his application on enforcement of fundamental rights under the constitution for dignity and not on tort or damages for bodily injury. Therefore, a voyage of discovery meted out to the Appellant was uncalled for; a Court is bound by the case of a party and cannot set up another for him.

In addition, the lower Court said he believes the evidence of the 1st Respondent without more which was more plausible to him. There is nothing magical about the words “I believe” when used by a Court once it is not supported by verifiable reason on the printed record, it amounts to naught!
The Apex Court has frowned against this manner of evaluation in the case of SAMUEL OLA OLADEHIN v CONTINENTAL TEXTILE MILLS LTD (1978) LPELR–2543 (SC) per OBASEKI, JSC (P. 12, PARAS C–E) relying on; AHLAJI AKIBU v JOSEPH OPALEYE (1974) 11 SC 189 AT 803 held that;
“… It’s the duty of a trial Judge to evaluate relevant and material evidence and decide the issues on the pleadings before him. He cannot abandon that duty by taking refuge in the clouds of “I believe” and “I do not believe” without really evaluating the evidence of vital witnesses. if he abandons this duty, the use of the expressions I believe and I don’t believe will not estopp the appeal Court from itself evaluating the evidence and seeing whether there is any justification for the use of such expression.”

Again, the Court raised issue of true caller app in a manner trivializing the Appellant’s application. The Court ought to take judicial knowledge of certain terminologies and also do a research of same; a Court is abreast of everyday use of technology. The true caller app is a telephone device application installed on phones to know/identify the identities of callers on one’s mobile phone; this issue was raised suo moto. Also, how the uncle knew the phone number was not in issue, the 2nd and 3rd Respondents decided not to file anything despite service, the position of the law is clear, the Appellant’s affidavits remain unchallenged. The failure of the 1st Respondent to react to the two affidavits means they do not contest the facts therein, they have admitted the facts. The lower Court had no business raising such questions suo motu and answering same, it amounted to a grave breach of fair hearing on the part of the Appellant.

Issue 3 is along the same lines from the reproduced portion of the judgment, the lower Court queried why there was no report to the police and medical report, as rightly put, there is no condition to the filing or success of an application under FHREP. This comes to play if the Appellant is asking for damages suffered as a result of illegal unconstitutional violation of his fundamental right guaranteed by the constitution for bodily injury or tort for the beating, and declarations of inhuman treatment for harassing, arresting illegally and detaining the Appellant.

The lower Court did not even spare a moment in analysing the affidavit evidence but the storyline and thus raised fundamental questions without affording the Appellant an explanation/response. These were the foundations upon which the lower Court dismissed the application; this is a grave injustice to the Appellant and the Fundamental Human Right (Enforcement Procedure) Rules, 2009.
On this note and without much ado, I resolve the four issues in favour of the Appellant.

The materials are before the Court and the danger in sending the application back would cause more injustice, I shall in line with objectives of the Fundamental Human Right (Enforcement Procedure) Rules, 2009 and the dictum of MBABA, JCA in SKYE BANK PLC v NJOKU (SUPRA) resolve the application on its merits.

I find that the affidavit evidence of the Applicant shows that there was a transaction and proof thereof is Exhibit A. It is trite that failure to produce a document which if produced would not be in favour of a party pursuant to Section 167 (d) of Evidence Act.

Therefore, failure to produce the counterpart receipt and receipt from POS to show that the Applicant is correct, he visited the station on the evening of 29th March, 2019 and paid with POS but due to network issues from the bank or server, he got the alert on 30th March, 2019 at 10 am the following day. I also take judicial notice of these issues now prevalent and of public knowledge.

There was an altercation at the station concerning queuing at the proper position after he re-joined the queue, paragraphs 9-16 of the affidavit of the Appellant at page 6 of record; paragraphs 3-13 of the further affidavit of Itepu Michael at page 10 and paragraph 2 of the affidavit of Mrs. Harrison Iwe all these were not refuted, coupled with the reply to the counter-affidavit of the Appellant, paragraphs 4-14 thereof were uncontroverted and deemed admitted, the Court will act on it. Furthermore, the evidence of these affidavits point to the fact that the 2nd Respondent is attached as a guard to the 1st Respondent is denied by 1st Respondent in paragraphs 10-18 and specifically paragraphs 19–24 strenuously, that they do not have guards or police guard and stoutly denied same but the 3rd Respondent who did not file any process at the lower Court filed a written address herein on 1st April, 2021 and would have discountenanced same save for the fact that the written address throws light on the status and position of the 2nd Respondent. Again, the address is against the self-interest of the 3rd Respondent who honestly with great uncommon candour in recent times. It was written by the DEPUTY SUPERINTENDENT OF POLICE for the 2nd and 3rd Respondents, Area command, Warri gave an admission against their interest in this matter, I shall reproduce same;
Our position is anchored on the fact that there is no evidence before the Court that the 3rd Respondent sent the 2nd Respondent to violate the rights of the Appellant. This stand of ours is further based on the facts that the 2nd Respondent is on a lawful duty with the 1st Respondent and the 3rd Respondent cannot be liable for whatever wrong or breach of any rights of the Appellant since the 3rd Respondent has no direct control of the 2nd Respondent who is with and on a lawful duty with the 1st Respondent (underlining mine)

This is a clear case of an admission against interest which in law, is most appropriate evidence in favour of his opponent, see ADEBOYE v BAJE (2016) LPELR – 40578 (CA).
The 3rd Respondent is the employer of the 2nd Respondent and posted him as a police guard to the 1st Respondent, he washes his hands off liability and places the 1st Respondent as the direct controller. See KAMALU & ORS v UMUNNA & ORS (1997) LPELR–1657 (SC), coram BELGORE JSC held;
“where there are admissions by a party against his interest such admissions will be admissible against the person, see Ajide v Kelani 1985 3 NWLR pt 12 248… it must be viewed in relation to the entire evidence before the Court to know the weight to be attached to it see Section 20 (3) (a) Evidence Act…”

Therefore, the 1st Respondent is bound by this; the 3rd Respondent sent/posted the 2nd Respondent as a guard to the organization and therefore cannot deny the presence of the 2nd Respondent, the Appellant was correct that the 2nd Respondent was working as a guard in the station up until the conduct of this case in the lower Court. I am bound by the processes filed in this Court and can make use of them. See LARMIE v DATA PROCESSING MAINTAINANCE & SERVICES LTD (2005) 18 NWLR (PT. 958) 438; GONZEE (NIG) LTD v NIG. EDUCATIONAL RESEARCH & DEVELOPMENT COUNCIL & ORS (2005) 13 NWLR (PT. 934) 634.

In this regard, the 1st Respondent was being economical with the truth and shielded the 2nd Respondent, I so hold. What is the effect of this? The 1st Respondent has proved itself to be a dishonest deponent and attempted to pull wool over the Court’s eyes but not in a fundamental right enforcement matter. I therefore find that the Appellant was telling the truth, the events transpired and he was harassed, brutalized by the 2nd Respondent and his colleagues. Would it be said that the 1st Respondent allowed this? From the affidavit evidence of Itekpu and especially the Appellant’s wife; Mrs. Harrsion Iwe who recounted from when she saw her husband on the floor and that all pleas fell on deaf ears, to when he was dragged out, the said Collins played the ostrich, he kept quiet and did not intervene nor did he call the 2nd Respondent to order, he forgot that the image of the station was at stake he quietly consented to all that happened, he represents the 1st Respondent and cannot escape being dragged by all the Appellant’s witnesses in the affidavits.

There is corroborated evidence that the Appellant returned for the ring he lost and the 1st Respondent denied seeing it.

I have seen and carefully examined the reliefs herein the Appellant is not asking for any monetary damages for loss of ring or bodily injuries but N5,000,000 (Five Million Naira) as damages suffered by the Appellant as a result of the illegal and unconstitutional violation of his fundamental human right by the 2nd Respondent who is the 1st Respondent’s mobile police guard and acting on behalf of 1st Respondent.

The award of damages in case of breach of fundamental rights must be such as would constitute a fair balance estimate of injuries suffered by the Applicant as due to the Respondent’s unlawful conduct. In considering the damages to be awarded the case of AJAYI v. A.G FEDERATION 1998 1 HRLRA 373 is a guide as relied on in IKECHUCKWU ATTAH v IGP (2015) LPELR–24656 (CA) that; a) the frequency of violation in recent times, b) continual depreciation for the naira, c) motivation for the violation, d) undeserved embarrassment meted out to the Applicant including pecuniary losses and for the conduct of the parties generally, particularly the 2nd Respondent.

I have taken judicial notice that in recent times the police has surged up in aggravated violence at the silence move for motives not yet established, the naira has been sliding as at today and I take due consideration that the Appellant was beaten like a common thief even when he was going about his purchase of fuel and no amount of provocation would ignite a call for help of other police men making it a group beating, the police are trained in physical warfare not to talk of practicing it on a defenceless man, definitely the measure meted out for whatever reason is excessive and unjustified. To beat a helpless man in front of his wife with a crowd begging, worse still is the whisking away in a van and left in a bush until the timely intervention of his uncle, it is scary and anybody would have been traumatized. As for the conduct of parties, I am satisfied that the conduct of the 1st Respondent, by the manager leaves much to be desired while the 2nd Respondent has proved to be a bad example of the 3rd Respondent and one of the undesirable elements, the 3rd Respondent refers; “he carried on with impunity”.

I have read the address of the 3rd Respondent and I am persuaded to agree in the circumstances of this case that the 2nd Respondent acted on his own with the silent connivance of the 1st Respondent in breaching the rights of Appellant.

I am therefore satisfied that the Appellant is entitled to be granted the reliefs.
I make the following declarations;
1. A Declaration that the acts of the 2nd Respondent who is an officer of the 3rd Respondent and the Mobile Police (Mopol) Security guard attached to the 1st Respondent’s in harassing, assaulting, arresting illegally and detaining the Applicant in sometime 29th of March, 2019 is illegal, unconstitutional, null and void.
2. The sum of N3,000,000.00 (THREE MILLION NAIRA) as damages suffered by the Applicant as a result of the illegal and unconstitutional violation of his Fundamental Rights by the 2nd Respondents who is the 1st Respondent’s Mobile Police guard and acting on behalf of the 1st Respondent when he (the Applicant) was unlawfully assaulted, beaten and taken to a bush path at an unknown location at Otokutu Town on the night of 29th March, 2019. In this order; 1st Respondent is to pay N2 MILLION NAIRA while 1st Respondent made to pay N1MILLION NARIA.
3. An Order of this Honourable Court on the 2nd Respondent only to tender an apology through any News medium within Warri to the Applicant for the assault, insults, inhuman treatment and the unlawful and illegal detention of the Applicant by the 2nd Respondent.
I award the sum of N300,000 as cost of the appeal against the 1st and 2nd Respondents.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance, a copy of the lead judgment of my learned brother, OBASEKI-ADEJUMO, JCA, which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as my own in allowing the appeal, and setting aside the judgment of the lower Court.
I abide by the orders made in lead judgment.

MUSLIM SULE HASAN, J.C.A.: I have had the benefit of reading in draft the leading judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA and I am in agreement with his reasoning and conclusions in resolving the issues in this appeal.

I have nothing to add to the brilliantly analysed and well-resolved appeal as I abide by the consequential order.