NIGERIA ARMY v. DUNOMA & ANOR (2021)

NIGERIA ARMY v. DUNOMA & ANOR

(2021)LCN/14924(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, January 25, 2021

CA/G/305/2019

RATIO

PROCEDURE: WHERE SHOULD ALL THE FACTS NEEDED TO PROVE HIS CASE BE CONTAINED

It is expected that all the facts needed to prove this case would be contained in the affidavit. In a matter decided on affidavit evidence the depositions stand or take the place of oral evidence per Bolaji-Yusuf in Nwosu Uche vs. INEC (2019) LPELR-48396. It is therefore, obvious that affidavit is evidence needed to prove this case. See Kraus Thompson Organization vs. NIPSS (2004) LPELR-1714. PER NDUKWE-ANYANWU, J.C.A.

EVIDENCE: EFFECT OF UNCHALLENGED EVIDENCE AND DEPOSITIONS IN AFFIDAVIT

It is also settled law that an affidavit evidence constitutes evidence and depositions therein not challenged, is deemed admitted. See the cases of Ajomale vs. Yaduat No.2 (1991) 5 NWLR (Pt.191) page 226; Magnusson vs. Koiki (1993) 12 SCNJ page 114; Henry Stephens Engineering Ltd. vs. S.A. Yakubu Nig. Ltd. (2009) LPELR-1363. PER NDUKWE-ANYANWU, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CIVIL CASES

The burden of proof in civil cases rests squarely on the prosecution. It only shifts when a substantial part of it has been proved. It has been said that the burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constant on the plaintiff. The other type is related to particular facts or issues which party claims exist. It is this burden of proof that oscillates from one party to the other while the first type of burden of proof is called legal burden or the burden of establishing a case. The second one is called evidential burden. See Federal Mortgage Finance Ltd. vs. Ekpo (2004) 2 NWLR (Pt.856) page 100; Ogwule Ankpa Agatu Co-operative Group Farming Society vs. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt. 590) page 234; Okoye vs. Nwankwo (2014) LPELR-23172 per Peter-Odili, JSC. PER NDUKWE-ANYANWU, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

NIGERIA ARMY APPELANT(S)

And

1. FALMATA DUNOMA 2. BAANA GONI ABATCHA A.KA. A BAN RESPONDENT(S)

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Hon. Justice Jude Kanyioh Dagat of the Federal High Court, Maiduguri delivered on Wednesday 5th December, 2018 in favour of the Respondents herein.

The Respondents as Applicants in the lower Court filed a suit for the enforcement of their fundamental rights seeking for the release of the 2nd Respondent who was arrested and detained on the 13th May, 2013 at the holding centres, Giwa Barracks, Maiduguri by the Appellant as Respondent without prosecution and or arraignment before any Court of law.

The Respondents alleged that the 2nd Respondent was arrested by the Appellant on 13th May, 2013 and detained. Since then the Respondents alleged that the 2nd Respondent was not arraigned and not released by the Appellant.

The Respondents and the Appellant filed their respective affidavits. The learned trial Judge in his considered Judgment held inter alia that there were inconsistencies in the affidavit of the Appellant and thereafter found for the Respondents and granted the Respondents N300,000.00 as general damages and also ordered the release of the 2nd Respondent.

The Appellant being dissatisfied with the judgment filed it’s Notice dated 1st March, 2019 with three (3) grounds. The Appellant filed its brief on 29th September, 2020 and articulated two (2) issues for determination as follows:-
“1. Whether the Respondents proved the allegation of unlawful arrest and detention of the 2nd Respondent by the Appellant (Ground 1).
2. Whether the burden of proof shifted to the Appellant leading to the Court, finding of inconsistency or contradiction and the subsequent award of the reliefs/damages against the Appellant (Grounds 2 and 3).”

The Respondents filed their Respondents’ brief on 2nd November, 2020 and also articulated two (2) issues for determination as follows:-
“1. Whether the Respondents proved the allegation of unlawful arrest and detention of the 2nd Respondent by the Appellant.
2. Whether the burden of proof shifted to the Appellant leading to the Court, finding of inconsistency or contradiction and the subsequent award of the reliefs/damages against the Appellant.”

The issues are similar in form, however, I will utilize the issues articulated by the Appellant, the aggrieved in this Appeal.

ISSUE 1:
The learned Counsel for the Appellant submitted that the 1st Respondent’s scanty and thumb printed affidavit without an illiterate jurat was not enough to prove the allegation of the Respondents. Counsel argued that the general rule of evidence is that, whoever desires to be given judgment must prove the fact he is relying on. See Section 131(1) of the Evidence Act; Section 131(2) and Section 132 of the Evidence Act.
“131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Whilst denying the allegations the Appellant’s Counsel argued that the onus or burden of proof is on the Respondents. The Respondents couldn’t prove where the 2nd Respondent was

arrested and when he was arrested. By whom he was arrested. To where he was taken when he was arrested. See A-G, Bayelsa State vs. A-G Rivers State (2006) 18 NWLR (Pt.1012) page 596, where Onnoghen, JSC held:-
“By the provision of Section 135 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, has the burden of proving that those facts exist. That being the case, it is settled law that the plaintiff has the burden of proof of the assertion.”

See also Elias vs. Disu (1962) 1 SCNLR page 361; Abiodun vs. Adehin (1962) 1 SCNLR page 305.
The reason why the burden of proof in a civil case is with the plaintiff is that he is the person who is making the claim and where he fails to discharge the burden, he must fail in his claim. SeeOsawaru vs. Ezeiruka (1978) 6-7 SC 135; A-G Anambra State vs. Onuselogu Ent. Ltd. (1987) 4 NWLR (Pt.66) 547.

Counsel also argued that since there was no jurat to the thumb printing, it fell short of Section 119(1), (2) and (3) of the Evidence Act, 2011.

Counsel urged the Court to resolve this issue in favour of the Appellant.

ISSUE 2:
Learned Counsel for the Appellant submitted that the Respondents did not prove the allegation of arrest and detention of the 2nd Respondent to enable the burden of proof to shift to the Appellant. SeeKodilinye vs Odu (1935) 2 WACA page 336. See also Section 133(1) of the Evidence Act which provides as follows:-
“133(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

See also Fajemirokun vs. Commercial Bank Credit Lyonnais (Nig.) Ltd. (2009) 5 NWLR (Pt.1135) page 588 where the Supreme Court per Mohammed, JSC held:-
“Thus, it is certainly the Appellant who would fail if no evidence at all were given on either side. The Appellant was therefore, bound to prove the existence of those sets of facts which curtailed or threatened to curtail his right of freedom of movement. Further, appellant claimed that he saw a complaint of theft against him recorded in the Police Record

Book. It is not the duty of the Police to tender the extract of the record book where Appellant saw the complaint of theft written against his name. It is the duty of the Appellant to tender such extract in evidence. Throughout the affidavit evidence, that was never exhibited. I believe this burden will not shift from the Appellant to the Respondent who flatly denied the allegation… This, the Appellant failed to do and the failure deprived him of the right to shift the burden on the Respondents.”

In G & T Investment Ltd. vs. Witt & Bush Ltd. (2011) 8 NWLR (Pt.1086) page 342 per Mukhtar, JSC held thus:-
“The Plaintiffs definitely did not discharge the burden of proof placed on them by Section 135 of the Evidence Act (supra), and so the burden did not shift to the Defendant/Respondent. It is after the Plaintiff would have proved its assertion, that the burden shifts, and then it becomes incumbent on the Defendant to prove its own case or rebut the case of the plaintiff.”

The Appellant urged the Court to resolve this issue on behalf of the Appellant and allow this Appeal.

RESOLUTION:
The Respondents as applicants in the lower Court alleged via their claim under the Fundamental Rights Procedure that the 2nd Respondent was arrested by the Appellant on 13th May, 2013. It is clear that this case was fought on the bases of affidavit evidence. You swim or sink with it. The 1st Respondent’s affidavit is recapped here under for ease of reference:-
“1. That I am the 1st Applicant and biological mother of the 2nd Applicant by virtue of which position I am fully conversant with the facts of this case.
2. That sometime on 13th May, 2013 my biological son the 2nd Applicant was arrested by the officers of the Respondents and taken to Giwa Barracks holding centre, Maiduguri, Borno State and being detained up to date without been prosecuted or arraign before a Court of law and justice.
3. That the 2nd Applicant is an innocent citizen of Nigeria with absolute and high reputation in his community and Maiduguri environs.
4. That the arrest and continuous detention of the 2nd Applicant for no offence and not being arraigned before any Court of law and such has bring the 2nd Applicant and his entire family to disrepute in the eyes of the community.

That it will be in best interest of justice to grant this application.
6. That I urge this Honourable Court to grant our Application as this Court is our last hope to seek for the relief of the infringement of the 2nd Applicant’s fundamental rights.
7. That I swear to this affidavit in good faith believing same to be true and in accordance with the Oaths Act.”

From the foregoing pronouncements by the Courts, it is obvious that affidavit is evidence. More especially in a trial fought only on the bases of affidavit on both sides.

I have recapped the affidavit evidence of 1st Respondent. The only fact that can be elicited is that the 2nd Respondent was arrested on 13th May, 2013. Also that he was detained in Giwa Barracks. That is the only information that the Court got from the affidavit of the 1st Respondent.
This affidavit lacked details. Where was the 2nd Respondent arrested from? What part of town? Was it during the day or at night? How many people in uniform personnel arrested him? What type of uniform was the arresting personnel wearing? Was it Soldiers, Police officers, Civil Defence, Immigration Officers or any other uniformed command? Who saw, the men arresting the 2nd Respondent? Who saw the uniformed men taking the 2nd Respondent to Giwa Barracks? Did the 1st Respondent go to the Barracks to visit the 2nd Respondent?
Apart from the 1st Respondent’s affidavit evidence, there is no other evidence to give flesh to the 1st Respondent’s affidavit. The 1st Respondent’s affidavit is the evidence of the Respondent

in this Appeal. Was any of the facts alleged proved by the Respondents? Like I reiterated earlier in affidavit evidence by parties you swim or sink with it.
The burden of proof in civil cases rests squarely on the prosecution. It only shifts when a substantial part of it has been proved. It has been said that the burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constant on the plaintiff. The other type is related to particular facts or issues which party claims exist. It is this burden of proof that oscillates from one party to the other while the first type of burden of proof is called legal burden or the burden of establishing a case. The second one is called evidential burden. See Federal Mortgage Finance Ltd. vs. Ekpo (2004) 2 NWLR (Pt.856) page 100; Ogwule Ankpa Agatu Co-operative Group Farming Society vs. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt. 590) page 234; Okoye vs. Nwankwo (2014) LPELR-23172 per Peter-Odili, JSC.

Having shown, the burden of proving this case is on the Appellant, it would be pertinent to ask whether the Respondents have been able to prove their case thereby shift it to the Appellant?
The Respondents gave very scanty evidence in this case. They have not been able to prove that indeed, the 2nd Respondent was arrested by the Appellant. It has not also been proved that the 2nd Respondent allegedly arrested was detained in the facilities of the Appellant i.e. Giwa Barracks Holding Centre.
The Appellant denied the allegation of the Respondents and they never supplied further or better particulars to aid them prove their case against the Appellant. In National Insurance Commission vs. Aminu (2011) LPELR-19751, per Bada, JCA:
“Under the rule of practice on filing and exchange of affidavit evidence, a party upon being served with a Counter-Affidavit containing a denial of the party’s allegation ought to file a further affidavit to counter the denial of his allegation. The effect of a failure to counter the averments in the counter-affidavit is that the facts averred or deposed to therein prevail and are to be relied upon by the Court. This is in accord with the principle that

in civil cases, which are decided on preponderance of evidence, the burden of proof lies on the party or person who would fail if no evidence is adduced as provided under Section 137 of the Evidence Act Cap.112 LFN.”
In the instant case, the Respondents failed to file further affidavit to counter the Appellant’s denial of their allegation. The implication is that they agreed with and accepted the facts stated in the Appellant’s Counter-Affidavit.
In Lawson-Jack vs. SPDC (Nig.) Ltd. (2002) LPELR-1767, Ogundare, JSC held:-
“Paragraphs of affidavit not denied nor controverted are deemed admitted. See Alagbe vs. Abimbola (1978) 2 SC page 39; Agbaje vs. Ibru S.F. Ltd. (1972) 5 SC page 50; Henry Stephens Engineering Ltd. vs. Yakubu Nig. Ltd. (2009) LPELR-1363; Ajomale vs. Yaduat (No.2) (1991) 5 SCNJ page 178; Magnusson vs. Koiki (1993) 12 SCNJ page 114.”
In the instant case instead of refuting the depositions made in the Counter-Affidavit, the Counsel in his brief is trying to proffer evidence to counter the depositions in the Counter-Affidavit. The Respondents complained that there were conflicting or contradictory

evidence relied on by the parties on a material issue before the Court, the Court cannot resolve such conflict by evaluating the conflicting evidence in order to achieve the resolution of the conflict per Onu, JSC in Arjay Ltd. vs. Airline Management Support Ltd. (2003) LPELR-555; Falobi vs. Falobi (1976) 9-10 SC page 1.
The supposed conflict in the Appellant’s affidavit ought to have been countered in a further or better affidavit.
Having failed to do this, the Respondents couldn’t prove their allegation with the minimum of facts provided or deposed to by them in their affidavit. The Respondents therefore, failed to prove their case against the Appellant and not deserving of the Judgment in the lower Court.

The Appellant had argued that there was no jurat to explain whether the deponent is an illiterate or a blind person. It is to be noted that a jurat is to protect the deponent. The Appellant cannot use it as a sword against the Respondents. However, the Respondents might use it as a shield against the Appellant.

The Respondents have not been able to prove their case against the Appellant deserving of the judgment of the lower

Court in their favour. This appeal is meritorious. It is allowed. The Judgment of the lower Court is set aside including the order as to damages.
No order as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading before now the draft leading Judgment which my lord, Ndukwe-Anyanwu, J.C.A. has just delivered.
I agree.

JAMES GAMBO ABUNDAGA, J.C.A.: I read in advance, the judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA. I concur with his lordship in his reasoning and conclusion that the respondents did not prove their case to entitle them to judgment. The facts in support of the respondents’ case left so much room for guess or speculation. The questions posed by my learned brother for which the respondents’ affidavit did not provide answers are germane.
Paragraph 2 of the affidavit in support of the respondents’ application for the enforcement of the 2nd respondent’s fundamental right states “that sometime on 13th May, 2013 my biological son, the 2nd applicant was arrested by the officers of the respondents and taken to Giwa Barracks holding centre, Maiduguri, Borno

State and being detained up to date without been (sic) prosecuted or arraign (sic) before a Court of law and justice” Fundamentally, there is need to give flesh to this wide allegation. For instance, where was he taken from, what efforts were made to have him released, or to be informed of the grounds for his arrest, and who saw him being arrested? Even when the allegation was denied by the Appellant the respondents did not file a further affidavit to give further details as to the circumstances of the arrest. The burden of proof in civil cases lies on the plaintiff. See Sections 131,132, and 133 (1) of the Evidence Act 2011. And until that burden is discharged, no burden shifts to the defendant. SeeOtanma V. Youdubagha (2006) LPELR – 2821 (SC), P.15 Paras D-E. (2006) 2 NWLR (P.964) 337; Oduola and Ors V. Coker and Ors (1981) LPELR – 2254 (SC), PP. 38-39, paras G-A.
Where a plaintiff fails to prove his case, it does not lie in his mouth to pick holes in the respondent’s case because the law requires him to succeed on the strength of his case, and not to rely on the weakness in the defendant’s case. See Obele and Ors V. Medunoye and Ors (2018) LPELR-44170 (CA), PP.8 – 9, PARAS F-A.

In this appeal, the respondents who failed to provide vital facts in support of their case picked holes in the Appellant’s case, by pointing to contradictory averments in their counter affidavit. This approach cannot aid their case.

It is on the basis of the foregoing, and the fuller reasons adduced in the judgment of his lordship that I too find merit in this appeal and allow same. In consequence, the judgment of the lower Court including the order as to damages is set aside.
I abide by his lordship’s order as to costs.

Appearances:

M. ATTAH, with him, A. ABUBAKAR For Appellant(s)

ABUBAKAR Holding the Brief of M. UMAR For Respondent(s)