MAIGERO & ORS v. MATA & ORS
(2022)LCN/17052(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/449/2018
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. ALIYU KULU MAIGERO 2. BATURE CHAIRMAN 3. HAMZA JARGADA APPELANT(S)
And
1. NUHU SHEHU KASUWAR MATA 2. MALAM ZUBAIRU DRIVER 3. DPO MAKERA POLICE STATION 4. THE COMMISSIONER OF POLICE, KADUNA STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN ACTION FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
Moving on from there, it is also trite that an action for the enforcement of fundamental rights such as the one the instant case, involves the exercise of the discretion of the learned trial judge who is to grant the application. See the cases of HART VS. T. S. K. J. (NIG) LTD (1998) 12 NWLR (PT. 578) 372 and ECHAKA CATTLE RANCH LTD VS. NACB LTD (1998) 4 NWLR (PT. 547) 526. It is therefore essential to the exercise of the discretion, which is not gratuitous for the applicant to place before the learned trial judge all the material facts necessary for the exercise of the discretion. See also the case of N. N. B. PLC VS. IBW ENT. (NIG) LTD (1998) 6 NWLR (PT. 554) 446.
Again, the burden and standard of proof in an allegation of a breach of fundamental rights resides in an applicant, id est, the 1st Respondent in this appeal. See cases of FAJEMIROKUN VS. C.B. NIG. LTD (2009) 5 NWLR (PT. 1135) 588 and JIM-JAJA VS. C. O. P., RIVERS STATE (2013) 6 NWLR (PT. 1350) 225. The standard of proof is on the balance of probability or preponderance of evidence. See the case of AROWOLO VS. OLOWOKERE (2012) ALL FWLR (PT. 606) 398 P. 12, PARAS. E – F per Ogbuinya, JCA.
It therefore follows that an Applicant who seeks the exercise of the Court’s discretion as in this instant case, has the burden of presenting all the material facts necessary for the exercise of such discretion. See the case of MORONKEJI VS. OSUN STATE POLYTECHNIC (1998) 11 NWLR (PT. 572) 145. The application of the applicant will fail where such materials are absent. See AKPOKU VS. ILOMBU (1998) 8 NWLR (PT. 561) 283. PER IDRIS, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
Looking at the judgment of the Court below, it is evident that the learned trial judge did not only shift the burden of proof from the 1st Respondent to the Appellants and the other Respondents at the trial Court, he also failed to properly evaluate the evidence before him and it is well settled that an appellate Court will not ordinarily interfere with findings of facts of the trial Court and this is particularly so where the evaluation involves the assessment of the credibility of witnesses. Where however, from the nature of the evidence, the evaluation would not entail demeanor and credibility of witnesses and simply entails the examination of oral and documentary evidence and the making of necessary deductions therefrom, the appellate Court is in as vantage a position as the trial Court to evaluate or re-evaluate same to see if the findings of the trial Court are supported by the evidence. And where the findings of the trial Court are not supported by the evidence then the appellate Court can intervene and substitute therewith findings supported by the evidence. See generally, the cases of AKINTOLA VS. BALOGUN (2000) 1 NWLR (PT. 642) 532, TINUBU VS. KHALIL & DIBBO TRANSS LTD (2000) 11 NWLR (PT. 677) 171, BEGHA VS. TIZA (2000) 4 NWLR (PT. 652) 193, AKPULE VS. AGBEOTU (1999) 10 NWLR (PT. 621) 107, MOGAJI VS. ODOFIN (1978) 4 SC 91, FINEBONE VS. BROWN (1999) 4 NWLR (PT. 600) 613 and IGWE VS. STATE 1982 9 SC 114.
Therefore, where a wrong conclusion is reached upon such evaluation, the appropriate thing to do is for the appellate Court to interfere and set it right in line with its statutory duties. See the case of ACHILIHU VS. ANYATONWU (2013) 1 SCNJ 332 AT 359. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, appealed against the decision of the High Court of Katsina State in Suit No. KTH/FT/15M/2017 delivered on the 10th day of January, 2018 by Honorable Justice Lawal Garba Abdulkadir.
The facts of the case leading to this appeal as deduced from the record of appeal are to the effect that the case was commenced by a Motion on Notice for the enforcement of fundamental rights filed on the 28th day of November, 2016 wherein the 1st Respondent as Applicant in the Court below, sought for the following reliefs against the Appellants and the 2nd to 4th Respondents as follows:
1. A DECLARATION that the executive action of the 5th and 6th Respondents in leading themselves to be used by the 1st – 4th Respondents in infringing the Fundamental Human Rights of the Applicant is illegal, oppressive, condemnable and contrary to the spirit and intents of the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2011 which guarantees the Fundamental Rights of the applicant.
2. A DECLARATION that the acts and conducts of the 1st – 4th Respondents for beating the Applicant to the state of unconsciousness in the name of investigation is unconscionable, illegal, oppressive, condemnable and contrary to the spirit and intents of the provisions of the constitution of the Federal Republic of Nigeria 1999 (as amended) 2011 which guarantees the Fundamental Rights of the applicant.
3. A DECLARATION that the 5th – 6th Respondents whilst working upon the instruction of the 1st – 4th Respondents is ultra-vires their duties and power when they violated and infringed upon the Applicant’s Fundamental Human Rights to personal liberty, freedom of movement private and family life guaranteed by Section 34, 35, 36, 37, 41 and 46 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2011 when they meddled and acted upon the investigation made by the 1st – 4th Respondent.
4. AN ORDER directing the Respondents jointly and severally to pay the sum of One Million Naira (N1,000,000) only being the general damage to the Applicant for beaten the Applicant to the state of unconsciousness and unnecessary detention for about seven hours by the 1st to 4th Respondent and later detained for two days in the hands of the 5th and 6th Respondent illegally which is a violation and deprivation of the Applicant’s Right to personal liberty, Freedom of movement, private and family life, embarrassment. Shame and disgrace; all of which emanated from the oppressive action of the Respondents as complained of, vide this application.
5. AND FOR ANY FURTHER ORDER OR OTHERS as the Honourable Court may deem fit to make in the circumstance and in the interest of justice.
The 1st Respondent who was the Applicant at the Court below, filed a 22 paragraph affidavit in support of the application with two annexures marked as Exhibits A1 and A2 while the 1st – 4th Respondents and 5th – 6th Respondents filed their respective Counter Affidavits and written address(es).
After the parties therein adopted their respective addresses, the Court gave its judgment in favour of the 1st Respondent. The Appellants herein, disagreed with the decision of the lower Court and appealed to this Court.
The parties to this appeal filed and adopted their respective briefs of argument in the appeal. In the Appellants’ brief of argument as settled by their counsel, Abdul Mohammed, SAN, and dated the 28th day of September, 2021, a sole issue for determination was formulated as follows:
Whether the medical evidence presented by the 1st Respondent showing stomach ulcer (PUD) and urinary tract infection (UTI) inflammation of the bladder (cystitis) was properly relied upon by the trial Court to sustain the allegation that the 1st Respondent was “beaten” and left in the “full of his blood” as to sustain a finding of breach of fundamental rights of the 1st Respondent? (Distilled from the sole Ground of Appeal)
Learned counsel for the Appellant submitted that the burden of proof is on the person who alleges per Section 132 of Evidence Act and that the person who seeks a declaratory relief has the burden to prove same. The case of AKINBADE & ANOR VS. AYOADE BABATUNDE & ORS (2017) LPELR – 43463 (SC) was cited in support. Counsel submitted that the 1st Respondent came to the Court claiming declaratory reliefs on page 2 of the record of appeal and in proof of the claim, he deposed to certain facts contained in paragraph 6, 7, 18 and 19 of the supporting affidavit.
Counsel then argued that there was inconsistent evidence particularly in Exhibit A2 (page 20 of the Record) the Abdominal-Pelvic USS Report, where the 1st Respondent was diagnosed of stomach ulcer (PUD) and urinary tract infection (UTI) inflammation of the bladder (cystitis) had no mention of any external injury arising from beating with wood or any bleeding to show that he was in a pool of blood. It was further argued that where the truth of a deposition is dependent on a document, the Court is enjoined to use documentary evidence as a hanger with which to evaluate deposition. The cases of GURARA SECURITIES & FINANCE LTD VS. T. I. C LTD (1999) 2 NWLR (PT. 589) 29, UBN VS. OZIGI (1994) 3 NWLR (PT. 333) 385, OPIGO VS. YUKWU (1997) 6 NWLR (PT. 509) 428, UMORU VS. ODUOGBO (1993) 6 NWLR (PT. 298) 217 and OTITO VS. ODIDI & ORS (2010) LPELR – 9070 (CA).
Counsel for the Appellant also argued that the evidence presented of ulcer and a urinary tract infection cannot be evidence of beating a person with wood leaving him in a pool of his blood and that the learned trial Court erred when he found that the 1st Respondent has proved his case on Exhibits A1 and A2. It was then contended that the 1st Respondent’s affidavit is filled with controversial depositions. First and foremost, Counsel for the Appellants submitted that the 1st Respondent was arrested on the 14th day of November, 2016 and was handed over to the 3rd Respondent on the 15th day of November, 2016 and then detained on the instructions of the 3rd Respondent from the 15th November, 2016 for a period of 3 days and that three days from the 15th day of November, 2016 is the 18th day of November, 2016. Counsel further submitted that Exhibits A1 and A2 which were prepared apparently after he was released from Makera Police Station shows that the 1st Respondent was not detained for three days by the 3rd Respondent as alleged in his supporting affidavit, and that a Court should not rely on a deposition when such affidavit evidence clearly tells a lie about itself. The cases of ROYAL EXCHANGE ASSURANCE (NIGERIA) LIMITED & ORS VS. ASWANI TEXTILE INDUSTRIES LIMITED (1992) LPELR – 2960 (SC), APOSTLE PETER EKWEOZOR & ORS VS. THE REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) 16 NWLR (PT. 1434) 433 CA and KAKIH VS. PDP (2014) 15 NWLR (PT. 1430) 374 were cited in support.
Counsel also argued that where a person is arrested upon reasonable suspicion of his having committed a criminal offence, it cannot be said to be a breach of the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria. Counsel then submitted that the allegation leading to the arrest of the 1st Respondent is that he has kidnapped a young lady for 10 days and by Sections 28 and 30 of Criminal Procedure Code applicable in Katsina State, a private person can effect an arrest upon reasonable suspicion of commission of an offence. Counsel then referred to Sections 28, 29 and 33 of the Criminal Procedure Code and contended that the Appellants could not be guilty of committing a breach of Section 35 which is one of the grounds upon which the 1st Respondent filed this application since he was arrested upon a reasonable suspicion of commission of an offence. Learned counsel for the Appellants argued further that since the learned trial judge found that the action of the 1st Respondent (2nd Respondent in this appeal) to exercise his duty of reporting the case of his daughter’s kidnap did not in any way violate the rights of the Applicant (1st Respondent), should the Court turn around and find the persons who effected the arrest of one of the persons that was reasonably suspected for the purpose of the investigation guilty of the breach of fundamental right of the 1st Respondent merely because it turned out that the lady in question was found in the custody of another? The cases of MAINSTREET BANK & ORS VS. MR. OLUGBENGA STEPHEN AMOS & ANOR (2014) LPELR – 23361 (CA) and MRS. BABY JUSTINA LUNA V COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS (2010) LPELR-8642 (CA) were cited in support.
Learned counsel for the Appellants further cited the cases of SOGBOMU VS. ODUNAIYA (2013) ALL FWLR (PT. 700) 1247 and NIGERIAN CUSTOM SERVICE BOARD VS. ECHY (NIG.) LTD (2017) LPELR – 42891 (CA) and submitted that the trial Court’s findings that led to the award of damages is perverse, speculative and not in accordance with the correct principle of law. Counsel then asked what is the wrong committed by the Appellants that they should be made to pay damages as the trial Court has not specifically stated the basis of the award of N500,000 (Five Hundred Thousand Naira only) as compensation against the Appellants or which part of the 1st Respondent’s right was violated and who violated same. In conclusion, the Appellants’ counsel submitted that the Court below erred in the course of evaluating the evidence before it.
In the 1st Respondent’s brief of argument as settled by his counsel Lawal Ahmadu Funtua, Esq., dated the 29th day of December, 2021, the Appellant’s sole issue for determination was adopted. The said issue is again reproduced hereunder thus:
Whether the medical evidence presented by the 1st Respondent showing stomach ulcer (PUD) and urinary tract infection (UTI) inflammation of the bladder (cystitis) was properly relied upon by the trial Court to sustain the allegation that the 1st Respondent was “beaten” and left in the “full of his blood” as to sustain a finding of breach of fundamental rights of the 1st Respondent? (Distilled from the sole Ground of Appeal)
Learned counsel for the 1st Respondent submitted that the reliefs sought at the Court below succeeded on evidence before the trial Court because in the 1st Respondent’s affidavit in support of his fundamental rights enforcement application, stated some facts were not challenged or controverted by the Appellants in their counter affidavit. Learned counsel reproduced the 1st Respondent’s deposition and argued that the rules governing affidavit evidence is that when a fact(s) asserted, is not denied or controverted by the adverse party who has a duty to do so, the same is deemed to be admitted by him. The cases of LAWSON VS. OKORONKWO (2019) 3 NWLR (PT. 1658) PG 66 AT 70 R. 6 and ADENIYI VS. TINA GEORGE IND. LTD (2019) 16 NWLR (PT. 1699) PG 560 AT 570 R. 12 were cited in support.
It was the 1st Respondent’s submission that Exhibits A1 and A2 attached to the motion filed by the 1st Respondent before the trial Court formed part of the affidavit in support and it is trite law that a document attached to an affidavit as an exhibit forms part of the affidavit. The case of IYEKE V P. T. I. (2019) 2 NWLR (PT. 1656) PAGE 217 AT 223 R. 12 was relied on. Counsel then submitted that the judgment of the trial Court did not solely rely on the exhibits but from the evidence adduced before it. Additionally, counsel submitted that by relying on paragraphs 12 and 13 on pages 5 and 6 of the record of appeal, it was very clear that the rights of the 1st Respondent was affected especially when the provision of Section 35(6) of the Constitution of the Federal Republic of Nigeria. Counsel argued further that since the Appellants did not challenge the exhibits in their counter-affidavit the trial Court cannot suo moto do it and that there was no inconsistent evidence in the 1st Respondent’s affidavit in support at the trial Court below as alleged in paragraphs 22 – 29 of the Appellant’s brief.
As it relates to paragraph 30 – 35 of the Appellant’s brief, learned counsel submitted that Sections 28, 29, 30, 33 and 67 of the Criminal Procedure Code of Katsina State do not empower a private person or public servant in the cause of arrest to beat and keep a citizen in their detention illegally. It was also argued that Section 35(6) of the Constitution does not allow an illegal detention nor allow to keep a citizen in detention in a place where there is a Court of competent jurisdiction within a radius of forty kilometers a period of one day. Additionally, that Sections 214 and 216 of the Constitution of the Federal Republic of Nigeria 1999 as amended, does not empower the Appellants as private persons, to beat and detain a citizen of Nigeria illegally.
Counsel then submitted that contrary to paragraphs 38, 39, 40 and 41 of the Appellants’ brief the decision of the lower Court in this case is well grounded in law because the actions of the Appellants towards the 1st Respondent were unjustifiable and illegal. It was then argued that the 1st Respondent is entitled to file a suit for the enforcement of his fundamental rights. The cases of IHIM VS. MADUAGWU (2021) 2 S.C.N.J. (PART II) PAGE 637 AT 646 R. 15 and FUT MINNA VS. OLUTAYO (2018) 7 NWLR (PT. 1617) 176 SC were relied on.
Finally, counsel submitted that contrary to paragraphs 42, 43, 44 and 45 of the Appellant’s brief the 1st Respondent is entitled to compensation because the Appellants are vicariously liable for torture acts conspired together against the 1st Respondent. The case of F.B.N. PLC VS. ONU KWUAGHA (2005) 16 NWLR (PT. 950) PAGE 121 AT 155 – 156 was relied on.
The Appellants filed a reply brief in response to the 1st Respondent’s brief of argument settled by Abdul Mohammed and filed on the 30th December, 2021.
Learned counsel for the Appellants argued that it was contended on behalf of the 1st Respondent that:
1. The Appellants did not controvert the contents of the affidavit in support of the application for fundamental right and as such the trial Court was entitled to take the depositions as admitted. (paragraph 13 and 20 of the 1st Respondent’s brief)
2. That because the Appellant did not challenge the Exhibits attached to the Affidavit in support, the trial Court cannot in the cause of evaluating the evidence review same. (paragraph 16 of the 1st Respondent’s brief)
Counsel submitted that the proposition is not borne out of the record and should be rejected. The cases of NBC PLC VS. OKWEJIMINOR (1998) 8 NWLR (PT. 561) 295 and TEXACO PANAMA INC. VS. SPDCN LIMITED (2002) 5 NWLR (PT. 759) 209 were relied upon. It was argued further that the contention of the 1st Respondent in paragraphs 13 and 20 of his brief of argument to the effect that uncontroverted facts in an affidavit are deemed admitted is wrong because the Appellants have adequately shown before the Court below that the 1st Respondent was neither tortured nor beaten by the Appellants while under detention their custody before the 1st Respondent was handed over to the Officers of the Nigerian Police Force, Katsina State.
It was submitted that it is settled law that when the facts in an affidavit are inconsistent with the exhibits attached therewith, the evidence in its entirety will be unreliable and should be rejected. The case of ATTORNEY GENERAL OF ENUGU STATE VS. AVOP PLC (1995) 6 NWLR (PT. 399) P. 125, PARAS. B-C was cited in support.
It was submitted that the contention that the absence of controversion enjoins the Court to abide by same merely renders the Court a robot. Reference was made to the cases of SAID H. AHMED & ORS VS. CENTRAL BANK OF NIGERIA (2013) LPELR – 20744 (SC) and OHUKA VS. THE STATE (1988) 1 NWLR (PT. 72) SC 539 in support.
RESOLUTION OF ISSUE
I have read and reviewed the submissions contained in the brief of arguments filed by counsel to the parties herein and I shall adopt the issue formulated for determination by the Appellants herein as the issue that has arisen for the determination of this appeal. The said issue is reproduced hereunder as follows:
Whether the medical evidence presented by the 1st Respondent showing stomach ulcer (PUD) and urinary tract infection (UTI) inflammation of the bladder (cystitis) was properly relied upon by the trial Court to sustain the allegation that the 1st Respondent was “beaten” and left in the “full of his blood” as to sustain a finding of breach of fundamental rights of the 1st Respondent?”
In proof of his case, the 1st Respondent attached Exhibits A1 and A2 to the affidavit in support of his application for the enforcement of his fundamental rights at the Court below which has now come for determination herein and the Appellants have argued that a person seeking a declaratory relief has the burden to prove same and that the Court cannot rely on the weakness of the defence. With regard to the consideration of the argument by the 1st Respondent’s Counsel as contained in paragraphs 13 – 18 of their brief, this is indeed the trite law which the apex Court has upheld in a plethora of cases including the case of MOHAMMED VS. WAMMAKO & ORS (2017) LPELR – 42667 (SC) where the Supreme Court held:
“With respect, I, entirely, endorse the submission of the learned senior counsel for the first and second respondents that, since the appellant sought for declaratory reliefs, he had an obligation to advance evidence in proof thereof. The reason is not far-fetched. Courts have the discretion either to grant or refuse declaratory reliefs. Indeed, their success, largely, depends on the strength of the plaintiff’s case. It does not depend on the defendant’s defence, Maja v. Samouris (2002) 7 NWLR (pt. 765) 78; CPC v. INEC (2012) 1 NWLR (pt. 1280) 106, 131. This must be so for the burden on the plaintiff in establishing declaratory reliefs is, often, quite heavy, Bello v. Eweka (1981) 1 SC 101; Okedare v. Adebara (1994) 6 NWLR (pt. 349) 157; Dumez Nig Ltd v. Nwakhoba [2008] 18 NWLR (pt. 1119) 361, 374.”
Moving on from there, it is also trite that an action for the enforcement of fundamental rights such as the one the instant case, involves the exercise of the discretion of the learned trial judge who is to grant the application. See the cases of HART VS. T. S. K. J. (NIG) LTD (1998) 12 NWLR (PT. 578) 372 and ECHAKA CATTLE RANCH LTD VS. NACB LTD (1998) 4 NWLR (PT. 547) 526. It is therefore essential to the exercise of the discretion, which is not gratuitous for the applicant to place before the learned trial judge all the material facts necessary for the exercise of the discretion. See also the case of N. N. B. PLC VS. IBW ENT. (NIG) LTD (1998) 6 NWLR (PT. 554) 446.
Again, the burden and standard of proof in an allegation of a breach of fundamental rights resides in an applicant, id est, the 1st Respondent in this appeal. See cases of FAJEMIROKUN VS. C.B. NIG. LTD (2009) 5 NWLR (PT. 1135) 588 and JIM-JAJA VS. C. O. P., RIVERS STATE (2013) 6 NWLR (PT. 1350) 225. The standard of proof is on the balance of probability or preponderance of evidence. See the case of AROWOLO VS. OLOWOKERE (2012) ALL FWLR (PT. 606) 398 P. 12, PARAS. E – F per Ogbuinya, JCA.
It therefore follows that an Applicant who seeks the exercise of the Court’s discretion as in this instant case, has the burden of presenting all the material facts necessary for the exercise of such discretion. See the case of MORONKEJI VS. OSUN STATE POLYTECHNIC (1998) 11 NWLR (PT. 572) 145. The application of the applicant will fail where such materials are absent. See AKPOKU VS. ILOMBU (1998) 8 NWLR (PT. 561) 283.
It is erroneous to assume that the Appellants or the other Respondents has any responsibility to supply any omission in the facts supplied by the 1st Respondent and on which the Court could exercise discretion. Thus, the burden is on the 1st Respondent in this case, who is seeking the exercise of the discretion of the Court in his favour. See the case of HART VS. IGBI (1998) 10 NWLR (PT. 568) 28.
Looking at the Exhibits A1 and A2 which consists of the 1st Respondent’s evidence before the trial Court, can it be said that they are sufficient enough to show that the 1st Respondent was beaten and unlawfully detained by the Appellants and the other Respondents respectively to have warranted the grant of the application by the trial Court?
Dealing with the acts of the Appellants in arresting, interrogating and detaining the 1st Respondent on the 14th of November, 2016, as argued by the 1st Respondent’s Counsel and as deposed in paragraphs 6 – 7 of the 1st Respondent’s affidavit in support of his application, the Appellants’ Counsel had argued on paragraphs 30 – 37 of the Appellants’ Brief of Argument that these acts were not done in contravention of the law. I cannot agree any less with the arguments of the Appellants’ Counsel in this regard as a person is empowered by law to effect an arrest upon reasonable suspicion of commission of a crime. However, by the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the suspect is still handed over to the police and this, the Appellants did as depose to by the 1st Respondent in paragraph 9 of the affidavit in support of his application that he was handed over to the 3rd Respondent. It is also clear from the evidence before this Court that the Appellants and the 1st Respondent are in agreement that the 1st Respondent was arrested based on a report by the 2nd Respondent and that the 1st Respondent was later handed over by the Appellants to the 3rd Respondent. See also Section 20 and 23 of the Administration of Criminal Justice Act, 2015.
The joint counter-affidavit filed at the trial Court by the Appellants herein and the other Respondents and contained at pages 36 – 37 of the record of appeal, the Appellants were able to show by paragraph 4 a – e, a process leading to the handover of the 1st Respondent to the 3rd Respondent. This showed a process that enabled them form a reasonable belief of suspicion of the 1st Respondent’s commission of the offence for which he was reported by the 2nd Respondent and then apprehended thus explaining a lapse between 7:00pm and 2:00pm when he was handed over to the 3rd Respondent. The same affidavit also shows that they did not conduct any investigation as it was the 3rd Respondent that did so.
The said deposition also shows that the 3rd Respondent took over on the 15th day of November, 2016 because if the 1st Respondent was arrested by the Appellant on the 14th of November, 2016 at 7:00pm, it clearly means that about 2:00am when he was taken from their custody and later handed to the 3rd Respondent, it was on the 15th of November, 2016. It then follows that the 1st Respondent was detained by the 3rd Respondent on the 15th day of November, 2016.
The 1st Respondent also depose to the fact at paragraph 12 of the affidavit in support of his application that he spent about three (3) days under detention and in paragraph 18 of the said affidavit, he deposed that after he was released, he went to the hospital. Even though this Court can tell from the affidavit evidence of the 1st Respondent that he was detained by the 3rd Respondent on the 15th day of November, 2016, this Court cannot say from the same evidence when he was released but can infer. The law grants the Court the right to draw inferences. See generally, the cases of OKOYE VS. KPAJIE (1992) 2 SCNJ 290 REPORTED AS OKONKWO V. KPAJIE (1992) 2 NWLR (PT. 226) 633; BOB VS. AKPAN (2010) 17 NWLR (PT. 1223) 421 and ADEDAYO VS. PDP (2013) 17 NWLR (PT. 1382).
The irresistible inference therefore is that even if the 1st Respondent was released on the 17th day of November, 2016 as per his deposition in paragraph 18 of his supporting affidavit, he cannot be said to have been held by the 3rd Respondent in contravention of Section 35(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) because the 17th day of November, 2016 from the 15th day of November, 2016 arrest would be 2 days but since the 1st Respondent was already out of detention by the 17th day of November, 2016, that would be less than two days after his arrest as against his argument that he was detained by the 3rd Respondent for about three days which is clearly not true. It is now pertinent to state here as from my findings made above and as against the argument of the 1st Respondent’s Counsel contained at paragraph 17 of the 1st Respondent’s Brief of Argument, that the Appellants did not detain the 1st Respondent for three days. The Appellants only apprehended the 1st Respondent at 7:00pm on the 14th of November, 2016 and handed the 1st Respondent over to the 3rd Respondent 7 hours after he was apprehended and which timing has already been considered above. It is also important to state here that it is not the duty of the Appellants to take the 1st Respondent to Court as the 1st Respondent has argued in paragraph 18 of the 1st Respondent’s Brief of Argument.
On the argument of the 1st Respondent’s Counsel as contained at paragraphs 19 – 22 of the 1st Respondent’s brief of argument, I am of the firm opinion that there is nothing in Exhibits A1 and A2 that the report gotten from his visit to the hospital was as a result of beating. Exhibit A2 is an Abdomino-Pelvic USS Report and the conclusion of the result is one of PUD and Cystitis (UTI) which connection was not drawn to any form of beating received by the 1st Respondent and it is not possible for me to come to that conclusion.
Also, in as much as I agree with the argument of the 1st Respondent’s Counsel that an Applicant for the enforcement of fundamental rights is entitled to compensation, by the provision of Section 35(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an applicant can only be entitled to compensation if he has proved that he has been unlawfully arrested or detained. The word “entitled,” as encapsulated in Section 35(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), denotes “to give (a person or thing) a title, right or claim to something; furnish with grounds for laying claim”. See the case of F. B. N. PLC VS. A – G, FED. (2018) 7 NWLR (PT. 1617) AT 149, per Augie, JSC.
Looking at the judgment of the Court below, it is evident that the learned trial judge did not only shift the burden of proof from the 1st Respondent to the Appellants and the other Respondents at the trial Court, he also failed to properly evaluate the evidence before him and it is well settled that an appellate Court will not ordinarily interfere with findings of facts of the trial Court and this is particularly so where the evaluation involves the assessment of the credibility of witnesses. Where however, from the nature of the evidence, the evaluation would not entail demeanor and credibility of witnesses and simply entails the examination of oral and documentary evidence and the making of necessary deductions therefrom, the appellate Court is in as vantage a position as the trial Court to evaluate or re-evaluate same to see if the findings of the trial Court are supported by the evidence. And where the findings of the trial Court are not supported by the evidence then the appellate Court can intervene and substitute therewith findings supported by the evidence. See generally, the cases of AKINTOLA VS. BALOGUN (2000) 1 NWLR (PT. 642) 532, TINUBU VS. KHALIL & DIBBO TRANSS LTD (2000) 11 NWLR (PT. 677) 171, BEGHA VS. TIZA (2000) 4 NWLR (PT. 652) 193, AKPULE VS. AGBEOTU (1999) 10 NWLR (PT. 621) 107, MOGAJI VS. ODOFIN (1978) 4 SC 91, FINEBONE VS. BROWN (1999) 4 NWLR (PT. 600) 613 and IGWE VS. STATE 1982 9 SC 114.
Therefore, where a wrong conclusion is reached upon such evaluation, the appropriate thing to do is for the appellate Court to interfere and set it right in line with its statutory duties. See the case of ACHILIHU VS. ANYATONWU (2013) 1 SCNJ 332 AT 359.
This is exactly what this Court has now done and from the totality of evidence adduced before the Court, the learned trial judge was wrong in arriving at his conclusion without proper evaluation of the evidence before him. In view of the foregoing, I hold that the medical evidence presented by the 1st Respondent showing stomach ulcer (PUD) and urinary tract infection (UTI) inflammation of the bladder (cystitis) among other evidence was wrongly relied upon by the learned trial judge to sustain the allegation that the 1st Respondent was “beaten” and left in the “pool of his blood” as to sustain a finding of breach of the fundamental rights of the 1st Respondent.
Thus this issue is resolved in favour of the Appellants against the 1st Respondent.
Flowing from the foregoing and in consideration of my findings made above in line with the evidence placed before this Court, I hold that the 1st Respondent is not entitled to all the reliefs sought before the trial Court having failed to prove the grant of same.
In the circumstances, this appeal has merit and it succeeds. An order is therefore hereby made setting aside the judgment of the trial Court delivered on the 10th day of January, 2018 in its entirety. I make no further order as to cost.
AMINA AUDI WAMBAI, J.C.A.: I read before now the draft copy of the leading Judgment delivered by my brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning and conclusion that the appeal has merit. I also allow the appeal.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with the reasoning and conclusions that the appeal has merit. I too also set aside the judgment of the trial Court. I abide by the order(s) in the lead judgment.
Appearances:
M. Sani Esq For Appellant(s)
L. A. Funtua Esq for the 1st Respondent For Respondent(s)
