NDLEA & ORS v. ADAMU (2022)

NDLEA & ORS v. ADAMU

(2022)LCN/17192(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, January 18, 2022

CA/K/156/2019

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

1. NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. THE CHAIRMAN (NDLEA) 3. OBI JOSEPHINE RUTH AGBEYEGBE (JIGAWA STATE COMMANDER NDLEA) 4. ALIYU A DABO 5. ABUBAKAR MUSA 6. ALHAJI MUHARAZU APPELANT(S)

And

ALKALI IDRIS ADAMU RESPONDENT(S)

RATIO

THE DEFINITION OF FUNDAMENTAL RIGHTS

Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary. Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights. PER ABIRU, J.C.A.

THE POSITION OF LAW ON THE DUTY OF THE TRIAL COURT

The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227. PER ABIRU, J.C.A.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377. PER ABIRU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS BY THE TRIAL COURT

WHETHER OR NOT FUNDAMENTAL RIGHTS OF NIGERIAN CITIZENS ARE ABSOLUTE

There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s). Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent. After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018.

The Respondent commenced the action in the lower Court by a motion brought pursuant to provisions of the Fundamental Right (Enforcement Procedure) Rules 2009. The Respondent sought for the enforcement of his fundamental right to dignity of human person, right to personal liberty, right to freedom of movement and right to freedom of expression as guaranteed, according to him, under Sections 34, 35, 39, 41, 44 and 46 of Constitution of the Federal Republic of Nigeria 1999 (as amended), an order of injunction to restrain further breach of his fundamental rights, public apology to be published in two widely read newspapers and the sum of N20 Million as damages.

The case of the Respondent on the processes filed was that he is an Alkali and had served in various Sharia Courts in Jigawa State and was also an Islamic scholar and preacher in his village, Doko, and in other neighbouring villages in Garki Local Government Area of Jigawa State. It was his case that on the 28th of September, 2018 while transiting to his farm on a commercial motorcycle, he was stopped by the fourth to the sixth Appellants who were on duty on the Kano/Gumel highway and he and the motorcyclist were asked to dismount for a search to be conducted. It was his case that they dismounted and that the officers insisted on searching him even after he identified himself as an Alkali and showed them his identification card, and that at the end of the search, nothing incriminating was found on them.

It was his case that after concluding the search and finding nothing incriminating, the officers still did not allow him to go and that when he insisted on being allowed to go, the officers started abusing him, calling him all sorts of names, and this attracted passer-by who were mainly people from his village and the neighbouring villages where he preached. It was his case that he reacted to the abuses by telling the officers that their actions were useless acts and whereupon the officers started beating him to the point of unconsciousness, and in the course of which he sustained an injury to his lip and that he was arrested by them, leg-cuffed and detained in the back of their Toyota Hilux vehicle. It was his case that he remained in that position in the scorching sun in the full glare of his village people for more than three hours before people came to plead with the officers to release him. It was his case that he lost his self-esteem and dignity and that the actions of the officers infringed his fundamental rights.

The Appellants filed a joint counter-affidavit and they denied the case of the Respondent and it was their case that the fourth to the sixth, while on a lawful routine patrol on the highway, Gumel/Kano highway, on the 21st of September, 2018, flagged down a motorcycle conveying three people. It was their case that the motorcycle stopped and the rider submitted for a search and was searched, but that the Respondent who was the second passenger on the motorcycle refused to submit to a search. It was their case that they conceded to the Respondent to search himself by bringing out everything in his pocket and that after doing so very reluctantly, and nothing incriminating was found on him, they asked the Respondent to step aside to enable them conduct a search on the third passenger.
It was their case that rather than step aside, the Respondent started abusing the officers and created a scene which attracted other persons and in the course of which they were prevented from searching the third passenger on the motorcycle who escaped from the scene of the search. It was their case that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties. It was their case that the Respondent resisted the arrest and that in course of the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that they did not beat the Respondent and that the Respondent was conscious the whole time. It was their case that the Respondent did not at anytime introduce himself as an Alkali.

It was their case that when they succeeded in arresting the Respondent, they leg-cuffed him to restrain him from running away with the intent of taking him to their office in Hadeija. It was their case that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent. It was their case that the Respondent then instigated the youths of the area and who gathered at the scene and threatened to burn the vehicle of the first Appellant and kill the three officers and the officers had to quickly leave the area. It was their case that on their way from the scene of the incident, they were accosted by policemen from the Nigerian Police Force, Garki Station Jigawa State and that they narrated to the policemen all that transpired. It was their case that it was the Respondent that degraded and inhumanly treated the fourth to the sixth Appellants with his utterances.

Counsel to the parties filed written addresses in support of the respective cases of the parties and the lower Court heard the matter on the merits and it entered judgment granting all the claims of the Respondent, but awarding him N5 Million as damages, instead of the N20 Million claimed. The lower Court found in the judgment that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless, and it proceeded from the finding to hold that the Appellants breached the fundamental rights of the Respondent.

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 14th of December, 2018 and containing seven grounds of appeal against it. In arguing the appeal, Counsel to the Appellants presented a brief of arguments dated and filed on the 17th of May, 2019 and the brief of arguments was deemed properly filed and served by this Court on the 22nd of January, 2020. In response, Counsel to the Respondent filed a brief of arguments dated the 20th of February, 2020 on the 21st of February, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellants distilled three issues for determination in the appeal and these were:
i. Whether having regards to the affidavit evidence and issues canvassed before the lower Court, the lower Court made a proper evaluation of the evidence before coming to the conclusions reached by the Court.
ii. Whether the award of N5 Million damages against the Appellant as well as an order of public apology were not arbitrary as they did not follow the principles for award of damages and public apology in cases of this nature.
iii. Whether the judgment of the lower Court was not perverse and therefore occasioned a miscarriage of justice.

In arguing the first issue for determination, Counsel to the Appellants referred to the case of Mbonu Vs Nwoti (1991) 7 NWLR (Pt 206) 737 in reiterating that it was the duty of a trial Court to properly evaluate the evidence contained in the depositions in the affidavits filed by the parties in making its findings and stated the trial Court failed to properly do so in the present case. Counsel stated that in response to the allegation of the Respondent that the fourth to the sixth Appellants pounced on him and beat him, the Appellants stated in paragraph 5(q) of the counter affidavit very clearly that the fourth to the sixth Appellants did not beat the Respondent. Counsel stated that the finding of the lower Court that the Appellants did not deny pouncing on the Respondent was grossly erroneous in law and was a complete misapprehension of the facts placed before the lower Court. Counsel stated that there was conflict in the affidavit evidence of the parties on whether or not the Respondent was assaulted by the fourth to the sixth Appellants and that instead of calling for oral evidence to resolve the conflict, the lower Court did so suo motu and that this was wrongful and he referred to the case of Asonye Vs Registered Trustees of CAN (1995) 2 NWLR (Pt 379) 623 and Boothia Maritime Inc Vs Far East Mercantile Company Ltd (2001) FWLR (Pt 50) 1713.

Counsel stated that the failure to call for oral evidence to resolve the apparent conflict in the affidavit evidence of the parties led the lower Court to make perverse finding which occasioned a miscarriage of justice and that this Court is empowered to interfere with the evaluation of evidence carried out by the lower Court in such a situation and he referred to the cases of Obajimi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1 and Dumez Nigeria Limited Vs Nwakhoda (2008) 18 NWLR 36. Counsel stated that not only was the decision not borne out by the evidence put forward by the parties, it was obvious that the lower Court acted on irrelevant factors by reason of the sentiments it expressed in the statements it made concerning the status of the Respondent in the award of damages.

Counsel stated that it is settled law that a decision reached on irrelevant factors and considerations cannot be allowed to stand and that the appellate Court is empowered to reevaluate the evidence in such circumstances and he referred to the cases of Ojeleye Vs Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2009) 15 NWLR 520, Ushae Vs Commissioner of Police (2005) 2 NWLR (Pt 937) 499 and Macaulay Vs NAL Merchant Bank Ltd (1990) 6 SCNJ 117. Counsel urged the lower Court to resolve the first issue for determination in favour of the Appellants.

On the second issue for determination, Counsel stated that the lower Court did not follow the laid down principles of award of damages in cases of this nature and that the award of exemplary damages is made cautiously and based on established principles and not on the whims and sentiments of the adjudicator and that the Respondent did not place sufficient materials before the lower Court to support the claim for damages and he referred to the cases of Attah Vs Inspector General of Police (2015) All FWLR (Pt 805) 108 and Onagoruwa Vs Inspector General of Police (1991) 5 NWLR (Pt 193) 621. Counsel stated that the lower Court did not give any legal basis or reasoning for the award of N5 Million as damages and said that it was doing ‘just to show sympathy and mitigate his medical and other expenses’ and that this amounted to speculation which a Court is not allowed to do and he referred to the case of Ushae Vs Commissioner of Police supra.

Counsel went on a voyage of restating the principles governing the award of aggravated and exemplary damages and he cited case law authorities thereon. Counsel noted the instances when an appellate Court will interfere with an award of damages by a trial Court and stated that this one of such instances as the N5 Million awarded by the lower Court was very high and excessive in the circumstances of this case. Counsel stated that lower Court awarded the damages to the Respondent ‘just to show sympathy and mitigate his medical and other expenses’, but that the Respondent did not depose that he incurred medical expenses or other expenses and did not put before the Court anything he lost. Counsel stated that this Court is empowered in the circumstances of this case to either set aside the award of damages or to re-assess the sum of N5 Million awarded and he referred to the cases of Adim Vs Nigeria Bottling Company Ltd (2010) All FWLR (Pt 527) 690 and Attah Vs Inspector General of Police supra. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

On the third issue for determination, Counsel stated that where the decision of a trial is perverse and has occasioned a miscarriage of justice, this Court should interfere and he referred to the cases of Njoku Vs The Registered Trustees of Congregation of Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 139, Uwah Vs Akpabio (2014) LPELR-22311(SC). Counsel stated that all the attributes of a perverse decision are present in the judgment of the lower Court and this Court should thus interfere with the decision. Counsel urged the Court to resolve the issue for determination also in favour of the Appellants.

Counsel concluded his submissions by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.

Counsel to the Respondent adopted the three issues for determination as formulated by Counsel to the Appellants. In arguing the first issue for determination, Counsel stated that it is the duty of the trial Court to make findings based on the evidence adduced by the parties and to arrive at a decision granting or dismissing the reliefs sought and that it is only where a trial Court fails to evaluate or improperly evaluates the evidence led that an appellate can intervene and reevaluate the evidence, but not otherwise and he referred to the cases of Sabo Vs Abdul Kadir (2016) All FWLR (Pt 992) 178, Olofin Vs Rasaki (2016) All FWLR (Pt 830) 1281 and Insurance Brokers of Nigeria Vs A. T. M. Co Ltd (1996) 8 NWLR (Pt 466) 316. Counsel stated that for improper evaluation or non-evaluation of evidence to have effect on the case of a party, the party alleging same must identify and specify the evidence not evaluated and show that it occasioned a miscarriage of justice and he referred to the cases of Mafulul Vs Takwen (2018) LPELR-45635(CA) and Adeye Vs Adesanya (2001) LPELR-166(SC).

Counsel stated that this case was conducted on affidavit evidence and that the complaint of the Appellants in this appeal was that the lower Court failed to make proper use of the depositions in counter affidavit in finding that the Appellants did not deny the contents of paragraph 18 of the affidavit in support where it was alleged that the fourth to the sixth Appellants pounced on the Respondent and beat him up and injured him in the mouth. Counsel noted that in paragraph 5(a) of the counter affidavit wherein the Appellants listed the paragraphs of the affidavit they were denying, paragraph 18 was not mentioned and he referred to paragraph 5(q) thereof wherein the Appellants deposed that they did not beat the Respondent and explained how the Respondent sustained the injury to the lip while he was resisting arrest. Counsel stated that it was obvious from the counter affidavit that paragraph 5(q) was an afterthought and did not constitute a denial of paragraph 18 of the affidavit in support.

Counsel thereafter referred and reproduced portions of the deliberations of the lower Court in the judgment and stated that it was obvious that the lower Court exhaustively appraised the evidence proffered by the parties, attached appropriate probative value to them before making its findings and entering judgment. Counsel stated that the evaluation of evidence carried out by the lower Court cannot be said to have occasioned a miscarriage of justice to the Appellants and this is because the humiliation and maltreatment meted out to the Respondent amounted to a clear breach of his fundamental rights guaranteed in Section 34 of the Constitution and he referred to the case of Nigeria Customs Service Board Vs Mohammed (2015) LPELR-25938(CA).

Counsel stated that, contrary to the submissions of Counsel to the Appellants, it is not in every situation where there is a conflict in affidavit evidence that the Court calls for oral evidence and that the Court can use documentary evidence to resolve such conflicts and he referred to the cases Collins Commermex Nigeria Ltd Vs Skye Bank Plc (2019) LPELR-46892(CA), Jev Vs Iyortyom (2014) All FWLR (Pt 747) 749 and APC Vs Agoda (2019) LPELR-47174(CA). Counsel stated that the seeming conflict in the affidavit evidence of the parties was on whether the fourth to the sixth Appellants beat up the Respondent, injured him and leg-cuffed him and that while the Respondent said they did, the Appellants maintained that they did not. Counsel stated that the Respondent attached photographs of himself with an injured lip and in leg-cuffs and the lower Court was right when it used the photographs to resolve the conflict.

Counsel urged the Court to resolve the first issue for determination in favour of the Respondent and stated further that, should it find there was indeed an improper evaluation of evidence which prejudiced the Appellants, the Court should reevaluate the affidavit evidence of the parties and come to an appropriate decision and he referred to the case of Okomalu Vs Akinbode (2006) LPELR-2470(SC).

In arguing the second issue for determination, Counsel noted that Counsel to the Appellants expended so much energy on what the Respondent had to prove to be awarded exemplary and aggravated damages and stated that the Respondent did not claim for exemplary and aggravated damages, but simply for general damages for breach of his fundamental rights. Counsel stated that the lower Court awarded the sum of N5 Million as compensation to the Respondent for the breach of his fundamental rights and that there is a world of difference between a claim for exemplary and aggravated damages and one for general damages and he referred to the case of Aice Investment Company Ltd Vs Fidelity Bank Plc (2015) LPELR-25753(CA). Counsel stated that the award of damages for breach of fundamental rights is automatic by virtue of the provisions of Section 36(6) of the 1999 Constitution and he referred to the case Jim-Jaja Vs C.O.P., Rivers State (2013) All FWLR (Pt 665) 203.

Counsel stated that the award of compensation under the fundamental rights proceedings, which is sui generis in nature, is not knotted by the shackles of common law principles and he referred to the cases of William Vs Usen (2018) LPELR-46163(CA), Ukpai Vs Omoregie (2019) LPELR-47206(CA) and Yahaya Vs NPF, Plateau State Command (2018) LPELR-46045(CA).

Counsel conceded that this Court possesses the power to tamper with and reassess damages awarded by the trial Court where the quantum is manifestly too high or manifestly too low or where it was granted on based on wrong principles of law, but stated that in determining whether a trial Court made a proper assessment in the award of damages in a fundamental rights proceedings, this Court must be guided by some factors including the frequency of the type of violation in recent times, the depreciating value of the Naira, the motivation for the violation, the status of the applicant and nature of undue embarrassment meted to the applicant and he referred to the cases of Attah Vs IGP (2015) LPELR-24656(CA) and NPF Vs Omotosho (2018) LPELR-45778(CA), amongst others.

Counsel stated that a read through the deliberations of the lower Court on the award of damages shows that some of these factors weighed on the mind of the lower Court in making the award of N5 Million as compensation to the Respondent and that there was no basis for this Court’s interference with the award. Counsel urged the Court to resolve the second issue for determination in favour of the Respondent.

On the third issue for determination, Counsel conceded that where the decision of a lower Court is perverse, an appellate Court can intervene to set it aside, but stated that it is not enough for a party to say that a judgment of the lower Court, which enjoys a presumption of irregularity by virtue of Section 168 of the Evidence Act, is perverse, the party show how it is so and he referred to the case of Amadi Vs Attorney-General, Imo State (2017) LPELR-42031(SC). Counsel referred to the cases of Udengwu Vs Uzuegbu (2003) LPELR (Pt 3293(SC) and Zock Vs Bawa (2017) LPELR-43227(CA) in asserting the derelictions a trial Court must commit for its decision to be perverse and stated that the Appellants woefully failed to show that the lower Court was guilty of any of the derelictions in coming to its decision. Counsel thus urged the Court to resolve the third issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court not to find any merit in the appeal and to dismiss same accordingly and to affirm the judgment of the lower Court.

Reading through the processes of the parties in the lower Court, the judgment of the lower Court, the notice of appeal and the entire arguments in the briefs of arguments of the parties, all the issues canvassed in this appeal can be subsumed under two issues for determination. These are:
i. Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants.
ii. In the case of issue (i) being in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The two issues for determination adequately capture the grievances of the Appellants in this appeal and the appeal will be resolved on the two issues for determination and this will be done seriatim.

Issue One
Whether, on the state of the facts as deposed by the parties in their affidavits and other processes, the lower Court was correct when it found that the Respondent made out a credible case of breach of his fundamental rights by the Appellants

Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law. They are rights that attach to particular individuals who can invoke them, they are of high priority, and compliance with them is mandatory rather than discretionary. Human rights are things which are owed to man because of the very fact that he is a man and are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life – Hassan Vs Economic and Financial Crimes Commission (2014) 1 NWLR (Pt 1389) 607.
The human rights law of Nigeria is contained, inter alia, in two major documents. These are the 1999 Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights.

The Respondent predicated his application before the lower Court on his rights to dignity of the human person, to personal liberty, to freedom of movement and to freedom of expression which, he said, are guaranteed by the provisions of Sections 34, 35 and 39 respectively of the 1999 Constitution.

The lower Court found that, on the affidavit evidence led by the parties, the Respondent made out a credible case to sustain his claim. In deliberating on the claims of the Respondent, the lower Court, after summarizing the respective cases of the parties, stated thus:
“… In the main paragraphs, i.e. paragraph 5(a) to 5(w) the respondents denied most of the averments in the affidavit in support more especially by paragraph 5(a) when they denied paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 19, 20 and 21 of the affidavit in support. However, the Respondents are not denying paragraph 18 of the affidavit in support. This means that they admitted pouncing on him having heard him utter the word ‘useless’. They also admitted beating the Applicant as well as jacking his gown and punching him on his mouth.
The Respondents, i.e. 4th, 5th and 6th Respondents, by paragraph 5(h) admitted that when the Applicant was finally searched, nothing incriminating was found with him in any of his pockets. The three Respondents in the field work emphasized that the sin of the Applicant was that he uttered the word ‘useless’ to them. They also claimed that the Applicant did not introduce himself as an Alkali Judge in the area.

Whether the behavior of the 4th, 5th and 6th Respondents on the 21st day of September, 2018 at Doko Village in Garki Local Government Area of Jigawa State was justifiable in the circumstances of this case?

The Respondents claimed that the Applicant refused to be searched and/or allowed the 3rd man on the motorcycle to escape their search. That he did not introduce himself, etc. All these things are reasonable ground to have pounced on a man who happened to be at their checkpoint unarmed and/or has not used violence on them? I think the answer to the above is that officers have used excessive force over an armless person. To me, the behavior amounts to a violation of the fundamental rights of the Applicant having regard to the fact that they are public officers entrusted to carry arms on duty. Calling them useless is not enough to have lost their temper and pounced on an innocent man who posed no danger to their lives. This kind of behavior by the 4th, 5th and 6th Respondents under the command of the 2nd and 3rd Respondents is barbaric and therefore uncivilized as it violates fundamental rights of the Applicant … I therefore award reliefs Nos. 1, 2, 3, 4 and 5 as prayed.
However, as to relief No 6, I do not believe that somebody in the caliber of the applicant in this kind of litigation can be adequately compensated by monetary compensation, no matter how much. But payment of damages cannot adequately compensate the applicant, but just to show sympathy and/or mitigate his medical expenses or other expenses, the sum of Five Million Naira (N5,000,000.00) can suffice. So, I award the sum of Five Million Naira (N5,000,000.00) compensation to the applicant to be jointly paid by all the Respondents so as to mitigate the suffering of the applicant.”

The gravamen of the complaint of the Appellants under this issue for determination is on the improper evaluation of affidavit evidence carried out by the lower Court in making its findings. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation –Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an Appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an Appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.

In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the Appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the Appellant. This presumption enjoins the Appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”
This means that an Appellant who complains about improper evaluation of evidence by the lower Court, bears the burden to specifically identify the evidence not evaluated or improperly evaluated by the lower Court and to demonstrate convincingly and satisfactorily, that if the evidence was evaluated or properly evaluated, the decision by the lower Court would have been different and in his favour – Ozuzu Vs Emewu (2019) 13 NWLR (Pt 1688) 143, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Adenekan Vs State of Lagos (2021) 1 NWLR (Pt 1756) 130, Union Bank of Nigeria Plc Vs Abasiakan-Ektim (2021) 4 NWLR (Pt 1765) 1.

The contention of the Appellants was that the lower Court failed to properly evaluate the entire contents of their counter affidavit and thus fell into error when it held that the Appellants admitted that the fourth to the sixth Appellants pounced on the Respondent, jacked his gown and punched him in the mouth because the Respondent said the fourth to the sixth Appellants were useless. The Appellants argued that there were paragraphs in the counter affidavit wherein they frontally denied beating the Respondent and that had the lower Court considered the entire paragraphs of the counter affidavit, it would have found that the Appellants made no such admission and that this would have affected the outcome of the case.

Reading through the above reproduced excerpts of the judgment of the lower Court, it is correct that the lower Court found that the Appellants made such an admission and that it did so on the ground that, in specifying the paragraphs of the affidavit of the Respondent they were denying in paragraph 5(a) of the counter affidavit, the Appellants omitted to mention paragraph 18 wherein the Respondent deposed to those facts. There is nothing in the deliberations in the judgment showing or suggesting that the lower Court considered the other paragraphs in the counter affidavit before it came to this conclusion. The lower Court particularly failed to refer to and consider the contents of paragraph 5(q) of the counter affidavit which reads:
“That throughout the exercise of searching, the 4th, 5th and 6th Respondents never beat the Applicant, the Applicant resisted arrest and in the course of the struggle to restrain the Applicant from running away, the Applicant and 4th and 5th Respondents fell down and sustained injuries. The Applicant was conscious throughout the searching exercise and no beating ever took place.”

The Appellants, in this paragraph, not only denied pouncing on the Respondent, jacking his gown and punching him in the mouth, they said the Respondent was never beaten and proceeded to explain how the Respondent sustained the injuries to his mouth and why they leg-cuffed him. It is elementary that in the determining whether or not a party has made an admission, the entire averments in the pleading or the entire depositions in the affidavit of the party must be read and considered together as a whole, and not just one or some of the paragraphs therein in isolation – Titiloye Vs Olupo (1991) 7 NWLR (Pt 205) 519, United Bank for Africa Plc Vs Ibafon Chemicals Ltd (2014) 6 NWLR (Pt 1402) 125, Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, Social Democratic Party Vs Biem (2019) LPELR-46871(CA), Orubo Vs State (2021) 16 NWLR (pt 1803) 549.

The lower Court very evidently failed to consider the totality of the depositions in counter affidavit of the Appellants as a whole in coming to the conclusion that the Appellants admitted beating and injuring the Respondent. A read through the above reproduced excerpt of the judgment shows that it was on the basis of the alleged admission by the Appellants, coupled with the fact that the parties agreed that nothing incriminating was found on the Respondent during the search, that the lower Court entered judgment and granted the claims of the Respondent. The judgment of the lower Court was thus predicated on an improper evaluation of the totality of the affidavit evidence presented before it by the parties.

The portion of the counter affidavit of the Appellants that the lower Court failed to consider and evaluate was their case that there were three passengers on the motorcycle that the fourth to the sixth Appellants flagged down for searching and that they first searched the rider of the motorcycle and then the Respondent, and they asked the Respondent to step aside to enable them conduct a search on the third passenger. The Appellants deposed that rather than step aside, the Respondent starting abusing the officers and created a scene which attracted other persons and in the course of which the officers were prevented from searching the third passenger on the motorcycle and who escaped from the scene of the search. They deposed that searching of vehicles and motorcycles and their passengers on the highway was part of their lawful duties and that the officers thus decided to arrest the Respondent for obstructing them in the course of their lawful duties.

The Appellants deposed that the Respondent resisted the arrest and that in the struggle that ensued to restrain the Respondent from escaping arrest, the Respondent, the fourth and fifth Appellants all fell down and they all sustained different injuries and that the officers did not beat the Respondent and that the Respondent was conscious the whole time. The Appellants deposed that when the officers succeeded in arresting the Respondent and he was leg-cuffed to restrain him from running away with the intent of taking him to their office in Hadeija. They deposed that shortly thereafter, the father of the Respondent, who introduced himself as the District Head of Doko Village and two elderly men arrived the scene and pleaded for the release of the Respondent and that, out of deference to the elderly men, they released the Respondent.

There is nothing in the processes filed by the Respondent disputing that the fourth to the sixth Appellants were carrying out their lawful duties along the Kano/Gumel highway on the day in question when they flagged down the motorcycle conveying the Respondent with the intent to carry out a search of the rider and passenger(s). Now, if the facts in these depositions of the Appellants are indeed correct, the act of the Respondent in obstructing the officers in the course of carrying out their lawful duty was wrongful and opened him up for arrest and that his resisting of arrest was wrongful and that officers would have acted rightly in enforcing the arrest and in leg-cuffing the Respondent to restrain in him from running away. This will mean that the fourth to the sixth Appellants acted legally and that their actions were not in breach of the fundamental rights of the Respondent. After all, it is settled law that fundamental rights of a citizen are not absolute – Ukegbu Vs National Broadcasting Corporation (2007) 14 NWLR (Pt 1055) 551 and Ukpabio Vs National Film and Video Censors Board (2008) 9 NWLR (Pt 1092) 219. They can be curtailed by the appropriate authorities where there are grounds for doing so – Dokubo-Asari Vs Federal Republic of Nigeria (2007) 12 NWLR (Pt 1048) 320 and Onyirioha Vs Inspector General of Police (2009) 3 NWLR (Pt 1128) 342.

What the above translates to is that the portion of the counter affidavit of the Appellants that the lower Court ignored and failed to consider and evaluate was a very material and substantial part of the case of the Respondent and which could have, if properly considered and evaluated, exonerated them from the allegations made by the Respondent. Therefore, the failure of the lower Court to evaluate the entire contents of the counter affidavit of the Appellants amounted to a breach of their right to fair hearing and occasioned them a substantial miscarriage of justice. The judgment of the lower Court is thus unsustainable and cannot be allowed to stand Arisons Trading & Engineering Company Ltd Vs The Military Governor of Ogun State (2009) 15 NWLR (Pt 1163) 26, Olanrewaju Vs Oyesomi (2014) LPELR-22695(SC), Union Bank of Nigeria Plc Vs Bear Marine Services Ltd (2018) LPELR-43692(SC), Ojo Vs State (2021) 3 NWLR (Pt 1764) 435.

Counsel to both parties have suggested that this Court should, where it finds that the lower Court improperly evaluated the affidavit evidence of the parties, proceed to evaluate the affidavit evidence and enter the appropriate judgment. It is correct that this Court has the power to so reevaluate evidence and enter appropriate judgment where the lower Court is guilty of improper evaluation of evidence – ABC Transport Co Ltd Vs Omotoye (2019) 14 NWLR (Pt 1692) 197. Yankey Vs Austin (2021) 1 NWLR (Pt 1756) 130, Ojo Vs State supra. It is, however, not a power that this Court exercises willy-nilly and its exercise depends on the facts and circumstances of each case.

In the instant case, when the narration of events by the Respondent in his affidavit in support is put side by side with the story of the events related by the Appellants in their joint counter affidavit, there a clear irreconcilable conflict on germane, significant and material facts that cannot be overlooked by the Court. It is correct, as stated by Counsel to the Respondent, that such conflict in affidavit evidence may be resolved either by resort to documentary evidence attached to the affidavits or by the calling oral evidence – Ahmed Vs Minister, Internal Affairs (2002) 15 NWLR (Pt 790) 239, Eze Vs All Progressive Grand Alliance (2020) 3 NWLR (Pt 1712) 413, Amatonjie Vs Chisco Transport (Nig) Ltd (2021) 9 NWLR (Pt 1780) 62.

Only the Respondent attached documentary exhibits to his affidavit and, contrary to the assertion of Counsel to the Respondent, none of them provides any assistance towards the resolution of the identified conflict in the affidavits of the parties. The only way the conflict can be resolved, therefore, is through the calling of oral evidence. Here lies the handicap of this Court in exercising its power to re-evaluate the affidavit evidence of the parties. This is an appellate Court and the calling of oral evidence is not part of its modus operandi. It is the lower Court that operates in the realm of calling for oral evidence. This Court thus declines the invitation of Counsel to the parties to reevaluate the affidavit evidence of the parties and will remit the case to the lower Court for a hearing on the full strength of the affidavit evidence of the parties. The first issue for determination is resolved in favour of the Appellants.

This takes us to the second issue for determination, which is – in the case of first issue for determination being answered in the positive, whether the award of N5 Million as damages/compensation in favour of the Respondent by the lower Court was appropriate in the circumstances of this case.

The question that arises is, whether, in view of the resolution of the first issue for determination in the negative, this Court should proceed to resolve the second issue for determination? One of the most firmly established principles of judging and judgment writing is that it is incumbent on a lower Court in the judicial hierarchy to resolve all the issues for determination raised or submitted by the parties for adjudication and not select one or some of the issues and decide the case thereon. The rationale for this is so that if it turns out on a further challenge to a higher Court that its findings on the selected issue or issues are wrong, the higher Court will not be faced with a dilemma of whether to remit the case to the lower Court for determination of the other issues it neglected to resolve or to take over the functions of the lower Court and determine the outstanding issues on the merits – Brawal Shipping Nig. Ltd Vs F. I. Onwadike Co Ltd (2000) 6 SCNJ 508 at 522, Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Stowe Vs Ben-Stowe (2012) 9 NWLR (Pt 1306) 450, University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1, Honeywell Flour Mills Vs Ecobank Nigeria Ltd (2018) LPELR 45127(SC), Onwe Vs State (2018) 5 NWLR (Pt 1612) 217, Sarki Vs All Progressive Congress (2020) 1 NWLR (Pt 1706) 515 at 546C-F.
The rule is however not absolute. It admits exceptions, i.e. situations where, after resolving a determinant issue in a matter, a lower Court need not proceed to resolve other issues in the matter. These are: (i) where the issue resolved is one of breach of right of fair hearing, which renders the entire proceedings a nullity, the Court need not proceed to resolve the other issues –Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Orugbo Vs Una (2002) 16 NWLR (Pt 792) 175, C. N. Okpala & Sons Ltd Vs Nigerian Breweries Plc (2018) 9 NWLR (Pt 1623) 16; (ii) where the lower Court is restricted by statute from going forth to determine the other issues; (iii) where an intermediate Court finds that the lower Court acted improperly in such manner that requires the case to be re-heard by the lower Court or by a Court of coordinate jurisdiction, it should not proceed to pronounce on the merit of the issues argued if the same issues would still arise at the fresh hearing of the case – Sanusi Vs Ameyogun (1992) 4 NWLR (Pt 237) 527 at 550-551, Tiga Green Farms Agricultural (Nig) Ltd Vs Mitsui O. S. K. Lines Ltd (2005) 17 NWLR (Pt 953) 70 at 86-87 and Five Star Industry Ltd Vs Bank of Industry Ltd (2017) LPELR 44029(CA); and (iv) where the issue resolved by the lower Court is one of jurisdiction and it is on a ground which has been settled beyond peradventure by the Supreme Court and on which the Supreme Court has been unanimously resolute, such that the resolution of the other issues will amount to an academic exercise –KLM Royal Dutch Airlines Vs Toba (2014) LPELR-23993(CA).

The present situation, in this case, comes within the third exception to the rule. The resolution of this Court under the first issue for determination is that the matter be remitted to the lower Court for a re-hearing of the entire case on the merits, and this includes the award of damages made by the lower Court. It will not be proper for this Court to proceed to pronounce on the second issue for determination in the circumstances. The second issue for determination is hereby declined and struck out.

In conclusion, this Court finds merits in appeal and it is hereby allowed. The judgment of the Federal High Court sitting in Dutse, Jigawa State and delivered in Suit No FHC/DT/CS/09/2018 by Honorable Justice S Yahuza on the 6th of December, 2018 is set aside for having been predicated on an improper evaluation of the affidavit evidence of the parties. The case file is remitted to the lower Court for a re-hearing of the case and the resolution of the obvious conflicts in the affidavit evidence of the parties by another Judge. The matter should be granted accelerated hearing. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother HABEEB ADEWALE O. ABIRU, JCA obliged me the draft of the leading judgment delivered by him just now. For the reasons ably considered in the judgment that tallied with mine, I too found the appeal meritorious. The appeal is allowed by me too.

I abide by the consequential orders in the leading judgment.