MR. ISAAC AKINBOLAJI & ORS v. HIS ROYAL HIGHNESS OBA RILWAN OLUWALAMBE TAIWO
(2018)LCN/12263(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/L/250/2009
RATIO
EVIDENCE: WHEN AFFIDAVIT IS UNCHALLENGED
“The credible affidavit evidence of the respondent which was weakly challenged by the appellants amounted to an admission and established the respondent’s case as rightly held by the Court below vide by analogy the cases of Unibiz Nigeria Ltd. v. Commercial Bank (Credit Lyonnais (Nig.) Limited) (2005) 14 NWLR (pt. 944) 47, The Registered Trustees of National Association of Community Health Practitioners of Nigeria and Ors. v. Medical and Health Workers Union of Nigeria (2008) 2 NWLR (pt. 1072) 575, Plateau State v. A.-G., Nasarawa State (2005) 9 NWLR (pt.930) 421, Badejo v. Federal Ministry of Education (1999) 8 NWLR (pt. 464) 15, Ex parte Adesina (1996) 4 NWLR (pt.442) 254, Federal Housing Authority (F.H.A.) v. E.S. Ltd. (2011) All FWLR (pt.42) at 55 – 56.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
FUNDAMENTAL RIGHT: WHERE FUNDAMENTAL RIGHT HAS BEEN BREACHED
“It is trite law that where an application has satisfied the Court that his Fundamental Rights has been breached, the onus is on the Respondents to justify the breach within the confines of the law. The Respondents have not discharged the onus by affidavit evidence. See AGBAKOBA VS. DCSS (1998) 1 HRLRA 253 AT 275 E-H.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MR. ISAAC AKINBOLAJI
MR. TEMIDAYO AKINBOLAJI
PASTOR BENJAMIN OGUNTOYE
MR. VICTOR ADENIJI ADEGBOYEGA
MR. ISRAEL OLADELE OGUNDIPE (GENESIS)
MR. & ALHAJA BOLA ADETOLA Appellant(s)
AND
HIS ROYAL HIGHNESS OBA RILWAN OLUWALAMBE TAIWO Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the Federal High Court sitting in Lagos by which it gave judgment for the enforcement of the respondent’s fundamental rights by issuing a declaration that the incessant visit and forceful entry of the respondent’s palace by the appellants on 17.12.2004 was unconstitutional; a declaration that the continuous harassment, embarrassment, intimidation or threat of arrest and arrest without lawful order of a Court was unconstitutional; an order restraining the appellants, their agents, privies and whosoever from forcefully entering and breaking into the palace of the respondent for the purpose of embarrassing, intimidating, locking him out and arresting him in a matter that is civil and subjudice; and the award of N250,000.00 general damages jointly and severally against the 1st – 9th applicants.
Aggrieved with the decision, the appellants filed a notice of appeal with six (6) grounds of appeal on 01.07.05. It was argued in the joint brief of arguments of the appellants filed on 05.02.10 that the Court below was wrong in striking out the relevant portions of the appellants’ counter affidavit showing their stand on the issue of the Obaship and land tussle between the appellants and the respondent which were necessary as they constituted the complaint of the appellants to the appropriate government agency responsible for prevention of crime and that the said paragraphs 11, 14, 16, 18 and 19 of the 3rd appellant’s counter affidavit to the affidavit of the respondent in pages 101 to 104 of the record of appeal (the record) did not contain argument and opinion but statement of facts, therefore the Court below was wrong in striking them out for offending Sections 86, 87 and 88 of the Evidence Act.
It was also argued that the Court below had a duty to listen to the facts deposed to in paragraphs 10 – 25 of the 1st – 2nd appellants’ counter affidavit in pages 91 – 92 of the record which led to their reporting the respondent to the police and that by expunging some paragraphs of the counter affidavit the Court below deprived itself of relevant facts which were useful for the just and equitable determination of the action which involved the right of the appellants to report the respondent to the police with a view to protecting their right to property.
The appellants argued that a close look at the respondent’s affidavit contained in pages 52 – 57 of the record did not disclose any arrest and detention of the respondent, let alone unlawful arrest and detention vide paragraph 11 of the affidavit in particular which deposed that upon a petition to the police by the ‘so called Indigenes Congress’ through the 4th appellant, their secretary, against the respondent the latter was invited by the police at Zone 2, Onikan Lagos and he obliged the invitation, therefore by Section 4 of the Police Act Cap.p.19 the police have the discretion to either arrest or refrain from arresting a suspect 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 that the respondents were therefore wrong to hold the 1st – 6th appellants responsible for the exercise of the discretion of the police (7th, 8th and 9th respondents at the Court below) citing in aid the case of Fawehinmi v. Inspector General of Police (2002) WRN 1.
It was argued that the respondent went further to depose that he obliged the police invitation meaning the respondent felt legally and morally bound to honour the police invitation vide the dictionary meaning of the phrase ‘oblige’ in Black’s Law Dictionary, 8th Edition, by Bryan A. Garner at page 1106; that paragraph 16 of the respondent’s affidavit, does not disclose evidence of arrest and detention; and that the police (7th to 9th respondents at the Court below) have the power to arrest and detain a suspect but what is forbidden by law is unlawful arrest and detention and in the instant case there is no evidence of arrest and detention, therefore the Court below was wrong in holding that the appellants were liable for the arrest and detention of the respondent when what the appellants did was only to make a report to the police.
The appellants argued that by inviting the respondent to the police station the 7th – 9th respondents at the Court below did not exceed their statutory powers and that even if there was evidence of arrest, the 7th – 9th respondents at the Court below had the powers to arrest the respondent on legitimate report of his committing a felony; but that in any event paragraphs 11, 14 and 16 of the respondent’s affidavit evidence in pages 52 to 55 of the record did not disclose evidence of any arrest of the respondent by the 7th – 9th respondents at the Court below.
The appellants argued that the power of arrest by the police could be exercised after the police are satisfied that a felony has been committed or about to be committed, therefore unless there is copious evidence of undue influence, a citizen cannot be held ‘vicariously liable’ with the police in the exercise of their discretion to either arrest or not citing in support the cases of Mclaren v. Jennings (2003) 3 NWLR (pt. 808) 468 at 483 – 484 and Nwagwu v. Duru (2002) 2 NWLR (pt. 265) 283.
Consequently the appellants contended that in the absence of concrete evidence that their presence at the police station upon invitation by the police over their petition prompted or induced the police to arrest and detain the respondent, the appellants cannot be held vicariously liable in the circumstances.
The appellants argued that their deposition that the respondent dispossessed the 1st – 2nd appellants of their property was neither controverted or denied by the respondent; that the 3rd and 5th appellants’ deposition that the respondent tried to dispossess him of his property was not denied by the respondent other than the respondent’s deposition that he was in Court over ownership of land with some people which could not have prevented the police from investigating allegation of theft and illegal conversion of property.
The appellants argued that the respondent stated that he was invited by the police and he obliged showing he was not arrested or detained as to entitle him to the award of N250,000 damages for alleged infringement of his fundamental right under Section 35(6) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution); more so, the 7th ? 9th respondents at the Court below were not heard before the award of N250,000 was made against them and the appellants in favour of the respondent.
The appellants concluded their arguments in the brief in these words:
“We urge the Court to upturn the judgment of the lower Court and in its position to dismiss the claims of the Respondent with punitive cost. The Appellants are not in any way liable to the Respondent who had wronged them. The suit as rightly submitted by the Appellants is just to serve as a shield to cover the atrocities of the Respondent. A dangerous precedent will be laid if the Respondent is allowed to commit a felony and rush to Court alleging violation of his right when investigation was on going by the appropriate government agency. The law is no respecter of anybody be it a king, or an ordinary citizen. The question one is tempted to ask is, whether the position of Oba will prevent the police from carrying out investigation when allegation of stealing and illegal conversion of other people’s properties were levied against the Respondent.”
It is on account of the submissions (supra) that the appellants urged that the appeal should be allowed.
The respondent’s brief was filed on 16.03.10. It was argued in the brief that the Court below was right in striking out paragraphs 8, 13, 14, 15, 16, 17, 18, 28 and 29 of the 4th appellants counter affidavit and paragraphs 11, 14, 16, 18 and 19 of the 3rd appellant’s counter affidavit on the ground that they constitute arguments, conclusions, opinions, hearsay and offend Sections 86, 87 and 88 of the Evidence Act.
The respondent argued that the appellants set the law in motion by Exhibits AA, BB, CC, DD, EE, FF which were not contradicted by the appellants as the 4th appellant also admitted in paragraph 18 of the counter affidavit citing in support the case of Leadway Association Company Limited v. Zeco Nigeria (2004) MJSC 179 at 181; that the unchallenged affidavit evidence of the respondent in pages 105 – 107 of the unchallenged affidavit evidence of the respondent in pages 105 – 107 of the record established that the appellants ‘coaxed, prompted, induced and employed undue pressure on the police in the discharge of their official duties after the police had advised parties to seek civil ways of resolving their dispute; and that as the appellants did not answer specifically the said affidavit evidence of the respondent, their general denials amounted to admission of the respondent’s affidavit evidence citing in support the cases of Leadway Association Company Limited v. Zeco Nigeria (supra), Emegokwe v. Okadigbo (1973) 4 SC 113, Ogunsola v. Usuma (2002) 14 NWLR (pt.788) 657 at 662.
The respondent also argued that his invitation by the police, as well as the writing of his statement under caution and admitting him to police bail on terms followed by subsequent visits of the respondent to the office of the 7th – 9th respondents at the Court below and the ‘bombardment’ of the palace of the respondent by the police for three (3) hours and the attendant harassment, intimidation and embarrassment of the respondent by the police with the connivance, prompting and undue pressure by the appellants through offering gratification to the 7th – 9th respondents set the law in motion to humiliate the respondent which exceeded the statutory powers of the police and infringed the respondent’s fundamental rights citing in support Chapter IV of the 1999 Constitution read with the Fundamental Rights (Enforcement Procedure) Rules (FREPR) 1979 and the cases of Fajemirokun v. Commercial Bank Credit Lyonnais and Anor. (2002) 10 NWLR (pt.774) 95 at 98 ? 99, C & C. Constr. v. Okhai (2004) 2 MJSC 134, Sea Trucks Nigeria Limited v. Anigboro (?) (2001) 10 WRN or (2001) 1 SC (pt.1) 34, Ahmad v. Sokoto State House of Assembly (2002) 15 NWLR (pt.791) 539 at 563, Agbakoba v. DCSS (1998) HRLRA 253 at 275, Mclarens v. Jennings (2003) 3 NWLR (pt.808) 468.
The respondent argued that on the uncontroverted facts accepted by the Court below establishing his fundamental rights at the instance of the appellants over a civil dispute respecting land tussle over Obaship, the Court below was right in awarding the N250,000 damages for the breach of the respondent’s fundamental rights by the appellants citing in support the cases of Shugaba v. Federal Minister of Internal Affairs HRLRA 373338, Ezeadukwa v. Maduka (1997) 8 NWLR (pt. 518) 639 at 566 (?); upon which the respondent urged that the appeal should be dismissed.
The appellants filed a reply brief on 24.10.10 in which it was contended that the issue of service of the originating process and other processes on the 7th – 9th respondents was the duty of the Court below to verify and confirm, not the respondent; that the respondent who did not cross-appeal should not have formulated issues for determination outside the grounds of appeal filed by the appellants; that there was no seizure or forcible restraint of the respondent to constitute an arrest citing in support Black’s Law Dictionary (supra) 116; that what happened after the filing of the application should be disregarded; and that there was no evidence of ‘prompting’ and ‘inducement’; therefore the appeal should be allowed.
The respondent did not cross-appeal. The appeal shall therefore be determined on the issues distilled by the appellants who own the appeal and whose issues are in tandem with the grounds of appeal vide Nwabueze v. The People of Lagos State (2018) 11 NWLR (pt. 1630) 201 at 211.
The Court below struck out paragraphs 11, 14, 16, 18 and 19 of the 3rd appellant?s counter affidavit in its ruling on the ground that they are conclusions and arguments and offend Sections 86, 87 and 88 of the Evidence Act and do not disclose the source of the facts vide page 162 of the record.
Similarly, paragraphs 8, 13, 14, 15, 16, 17, 18, 28 and 29 of the 4th appellant’s counter affidavit in pages 86 – 89 of the record were struck out for offending Sections 86, 87 and 88 of the Evidence Act which forbids arguments and opinions in affidavit evidence vide page 161 of the record containing part of the decision or ruling of the Court below.
The counter affidavit of the 4th appellant is in pages 86 – 89 of the record; while the 3rd respondent’s counter affidavit is in pages 101 – 104 of the record. Paragraph 11 of the 4th respondent’s counter affidavit when read with the preceding paragraph 10 thereof referred to a pending litigation over the Obaship of Ojokoro which was extraneous to the alleged infraction of the respondent’s fundamental rights that was in litigation at the Court below; while paragraphs 8, 13, 14, 15, 16, 17, 18, 28 and 29 of the counter affidavit do not state as a fact the information deposed therein; nor does the 4th appellant disclose his source of information on the said deposition. Paragraphs 18, 19, 28 and 29 thereof also draw conclusions and are thus not statements of facts per se.
The Court below was therefore right in striking out the said paragraphs of the 4th appellant’s counter affidavit for containing extraneous matter by way of conclusion and not disclosing the source of information as earlier stated contrary to Sections 86, 87 and 88 of the Evidence Act, then applicable to the case now Section 115 of the Evidence Act 2011 (Evidence Act).
Paragraphs 11, 14, 16, 18 and 19 of the 3rd appellant’s counter affidavit in pages 102 – 103 of the record are conclusions and were also rightly struck out by the Court below vide Sections 86, 87 and 88 of the Evidence Act then applicable to the case, now Section 115 of the Evidence Act. See alsoBamaiyi v. The State (2001) FWLR (pt.46) 956, Veepee Industries Ltd. v. Cocoa Industries Ltd. (2008) All FWLR (pt. 425) 1667 at 1685, Maja v. Samouris (2002) FWLR (pt.98) 819.
I agree with the appellants that events that occurred after the action was filed constitute separate cause of action, if any, and would not be considered in the present case. The episode after the Court sitting detailed in the submissions of the respondent and the affidavit evidence in support in pages 105 – 107 of the record are accordingly irrelevant to the consideration of the present case as they related to what transpired after the action was filed without an amendment to incorporate same in the action.
The Court below held in its ruling in pages 163 – 166 of the record thus –
“The Respondents specifically the Police had bombarded the palace on the 17th day of December, 2004 surrounded by more than 15 Policemen and held the house hostage for three (3) hours with guns to arrest the Applicant. The Applicant has been reporting at the Station daily and the Police had enough time to have detained him on the charges. These amounts to obvious threats of violation to Fundamental Human Rights and it is unconstitutional, his dignity, has been injured by these acts and he has been living in constant [ear of those violation. The deposition of the 1st – 6th Respondents are not an answer to the acts complained about, it is trite law that specific deposition of facts in an affidavit cannot be controverted by sweeping or general denials in a counter affidavit.
It is also trite law that once a case is pending in a Court of law all actions relating to it must cease. The Suit in the High Court in my view is sufficient to put an end to the dispute on land and since the incident of disposing the 1st – 2nd Defendants items without his authority is to be investigated by the Police and charged to Court if need be.
In comparing all the counter affidavits of the 1st – 6th Respondents, I find that none of them denied the averments in the verifying affidavit generally or specifically but offered reasons on why they petitioned the Applicant, this is clearly an admission and is deemed to be the true position.
There was therefore no need for either the invasion of the 17th day of December, 2004 it is uncontroverted that the 1st – 6th Applicants had followed up the events, pressurizing and instigating the Police to arrest and detain; and humiliate the Applicant. They did more than petition or point out a suspect.
It is trite law that where an application has satisfied the Court that his Fundamental Rights has been breached, the onus is on the Respondents to justify the breach within the confines of the law. The Respondents have not discharged the onus by affidavit evidence. See AGBAKOBA VS. DCSS (1998) 1 HRLRA 253 AT 275 E-H.
I further find that there is a breach of the Fundamental Right of the Applicant and I so hold and there is a genuine fear of a threat/breach by the Respondents.”
The affidavit in support of the application which is contained in pages 52 – 56 of the record and the further affidavit in reply to the 1st – 2nd appellants’ counter affidavit in pages 94 – 95 of the record were not frontally denied by the appellants in the respective surviving paragraphs of their affidavit evidence.
The credible affidavit evidence of the respondent which was weakly challenged by the appellants amounted to an admission and established the respondent’s case as rightly held by the Court below vide by analogy the cases of Unibiz Nigeria Ltd. v. Commercial Bank (Credit Lyonnais (Nig.) Limited) (2005) 14 NWLR (pt. 944) 47, The Registered Trustees of National Association of Community Health Practitioners of Nigeria and Ors. v. Medical and Health Workers Union of Nigeria (2008) 2 NWLR (pt. 1072) 575, Plateau State v. A.-G., Nasarawa State (2005) 9 NWLR (pt.930) 421, Badejo v. Federal Ministry of Education (1999) 8 NWLR (pt. 464) 15, Ex parte Adesina (1996) 4 NWLR (pt.442) 254, Federal Housing Authority (F.H.A.) v. E.S. Ltd. (2011) All FWLR (pt.42) at 55 – 56.
It can be inferred from the credible and uncontroverted affidavit evidence (supra) of the respondent that the ‘invitation’ by the police had coerced undertone with subtle/soft subterranean hint of enforcing it by physical arrest, if need be, which obliged the respondent to comply with the ‘invitation’ thus amounting to an arrest vide the apt case of Aigoro v. Anebunwa (1966) N.N.L.R. 87 at 92 where it was held inter alia that –
The second observation is relevant to the case before us. It is necessary to amplify what was said in the passage we have just read from the judgment in Ateze v. Morna. There may be apprehension of force as much from an implied threat of force as from a threat expressly made, and a mistaken belief that legal process is being used or exists can bring about a submission just as real and effective as could be caused by any actual legal process. The question for a Court will always be whether there is evidence, direct or inferential, of a submission on the part of the plaintiff and a consequent restraint of his liberty. …
in complying with the “invitation” at that moment and in those circumstances the respondent can hardly be supposed to have been doing what he wanted to do or acting of his own free will. There was evidence from which a submission on the part of the respondent and a restraint of his liberty could properly have been inferred, as it was inferred.”
See also the case of Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 617) 92 at 120.
The fact that there is undisputed evidence that the respondent processed police bail before he was released on police bail showed there was restraint on liberty of the respondent before he was released on police bail.
The stable affidavit evidence of the respondent particularly paragraph 12 thereof reads –
The paragraphs 12, 13, 14, 15, 16 and 17 were carried out by the Zone 2 Police Headquarters on the prompting, instruction and connivance of the 6th Respondent and his cohorts to harass, intimidate and humiliate the Applicant over a property that does not belong to him.
The annoyance and complaint of the Applicant in his application is the prompting of the 6th to 9th Respondents by the 1st to 6th Respondents to harass, arrest, intimidate, humiliate for the purpose of causing him embarrassment and odium.
I agree with the Court below that from the convincing affidavit of the respondent, the appellants were actively instrumental in instigating the police (7th – 9th respondents at the Court below) in infringing his fundamental right to personal liberty when the controversy between the appellants and the respondent was sub-judice as held by the Court below vide the cases of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt.1620) 61, Diamond Bank Plc v. Opara (supra) at 92 forbidding the use of law enforcement agencies to enforce civil disputes.
The award of N250,000 damages against the appellants for the infringement of the respondent?s fundamental rights in the circumstances of the case was a modest/moderate award as the monetary award in such matters is compensatory and should always be of enhanced value to register revulsion on the infraction of fundamental rights which is in an upscale class and/or on higher pedestal than any other rights vide Jim-Jaja v. C.O.P., Rivers State (2013) 6 NWLR (pt. 1350) 225.
On the whole, I find no substance in the appeal and hereby dismiss it and affirm the decision of the Court below with N200,000 costs against the appellants in favour of the respondent.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the decision which has just been rendered by my learned brother, Joseph Shagbaor Ikyegh, JCA. I am in entire agreement with, and do not desire to add to the reasoning and conclusion therein contained. I adopt the entire decision as mine.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA.
I agree that the appeal lacks merit, and it is hereby dismissed. I abide with the consequential order as to costs awarded in the said lead judgment.
Appearances:
The Appellants were unrepresented but served hearing notice.For Appellant(s)
Mr. S. S. OgunkanmiFor Respondent(s)
