OLUSEGUN & ORS v. OYEKANMI (2020)

OLUSEGUN & ORS v. OYEKANMI

(2020)LCN/15403(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/IB/369/2018

RATIO

CIRCUMSTANCE IN WHICH THE COURT OUGHT TO INVITE THE PARTIES TO CALL ORAL EVIDENCE TO RESOLVE CONFLICT IN AFFIDAVITS

FINDINGS OF FACT: WHETHER CONCLUSIONS FROM FACTS OF A TRIAL CAN BE BASED ON SPECULATION

In my view, it is out of place for a Court to base its decision on speculation. Courts of Law are Courts of facts and laws. It is the fundamental principle of law that findings of facts and conclusions from facts of a trial should be based on evidence adduced before the Court and not on speculation.
See- E.S.C.S.C VS. GEOFREY (2006) 18 NWLR PART 1011 PAGE 293 AT 307 PARAGRAPHS D – E.
– AGIP NIG LTD VS. AGIP PETROLI INT. (2010) 5 NWLR PART 1187 PAGE 348 AT 413. PER JIMI OLUKAYODE BADA, J.C.A.

DIFFERENCE BETWEEN CONTRADICTIONS IN AN AFFIDAVIT FILED BY A PARTY AND CONTRADICTIONS IN THE AFFIDAVITS OF THE PARTIES

It is trite law that there is a difference between contradictions in an affidavit filed by a party and contradictions in the affidavits of the parties. In the former, the Court is not bound to call oral evidence as the contradictions (as in this case) are self-created, while in the latter case the Court is bound to call oral evidence.
See- MOMAH VS. VAB PETROLEUM INC. (2000) 4 NWLR PART 654 PAGE 534. PER JIMI OLUKAYODE BADA, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

(1) ASP AWODELE OLUSEGUN (D.O) (2) CORPORAL OLA KAYODE (3) COMMISSIONER OF POLICE OGUN STATE COMMAND APPELANT(S)

And

ADISA YUNUS OYEKANMI RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court, Abeokuta Judicial Division in Suit NO: AB/493/2017:- MR. ADISA YUNUS OYEKANMI VS ASP AWODELE OLUSEGUN (D.O) (2) CORPORAL OLA KAYODE (3) COMMISSIONER OF POLICE, OGUN STATE COMMAND, ELEWERAN, ABEOKUTA delivered on 22nd day of March, 2018 wherein it was ordered as follows:-
(a) “It is hereby declared that the arrest and detention of the Applicant on 14/08/2017 by the 1st and 2nd Respondents is illegal, arbitrary, oppressive and constitutes an infringement of the Fundamental Rights of the Applicant to liberty under Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
(b) It is hereby declared that the assault and torture meted to the applicant is against the fundamental right of the Applicant to dignity of person under Section 34 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under Articles 4, 5, and 6 of the African Charter on Human and Peoples’ Right (Ratification and Enforcement Act).
(c) I award N200,000 Damages against the 1st and 2nd Respondents jointly and severally in favour of the Applicant for the unlawful arrest and detention of the Applicant without any legal justification.”

Briefly, the facts of this case are that the Applicant, now Respondent sought against the Respondents now Appellants, the determination of the following issues:-
“(1) Is the arrest and detention of the Applicant justified in law?
(2) Is the torture and cruelty meted unto the Applicant allowed by relevant laws of the land.
(3) Is the Applicant entitled to damages for the unlawful arrest and detention”.

The Applicant also asked for the following reliefs from the trial Court.
“(1) A declaration that the arrest, assault on the Applicant on the 14th day of August, 2017 and his consequent detention by the 1st and 2nd Respondents is illegal, arbitrary, oppressive and unwarranted, constitutes an infringement on the fundamental right to liberty of the Applicant.
(2) A declaration that the torture meted on the Applicant is against the fundamental rights of the Applicant to freedom of movement, liberty and dignity of persons under Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under Articles 4, 5, and 6 of the African Charter on Human and People’s Right (Ratification and Enforcement Act).
(3) An Order of the Honourable Court compelling the 1st and 2nd Respondents to pay jointly the sum of Five Million Naira only (N5,000,000.00) to the Applicant as damages for the unlawful arrest and detention of the Applicant without any legal justification.”

The Application was contested and at the conclusion of hearing, the learned trial Judge delivered a Judgment in which he resolved the issues against the Appellants and the sum of (N200,000.00) Two Hundred Thousand Naira was awarded as compensation to the Respondent who was the Applicant at the trial Court.
The Appellants, who were dissatisfied with the Judgment of the trial Court, appealed to this Court.

The learned Counsel for the Appellants formulated three issues for the determination of this appeal. The said issues are set out as follows:-
“(1) Whether the trial Court was right to have based its decision on speculative facts.
(2) Whether the trial Court, was right to have reached a decision without calling for oral evidence when there are material contradictions in the depositions of the parties.
(3) Whether the Appellants have the statutory power to carry out their assignment as done by them which was reflected in the affidavit evidence.

On the other hand, the learned Counsel for the respondent formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
“(1) Whether the trial Court was right in holding that the arrest and detention of the Respondent/Applicant by the Appellants/Respondents has no legal justification even without calling oral evidence in reaching its decision. (Distilled from Ground 4).
(2) Whether the lower Court was speculative in the evaluation of the evidence to have occasioned a miscarriage of justice and therefore warrant the setting aside of the said Judgment (Distilled from Grounds 1, 2 and 3).”

At the hearing of this appeal on 14/9/2020, the learned Counsel for the Appellants stated that the appeal is against the Judgment of Ogun State High Court, Abeokuta Judicial Division delivered on 22/3/2018.

The notice of appeal was filed on 1/6/2018 while the record of appeal was transmitted on 31/8/2018. The Appellants’ brief of argument was filed on 12/10/2018.
The learned Counsel for the Appellants adopted and relied on the said Appellants brief in urging that the appeal be allowed.

The learned Counsel for the Respondent in his own case also referred to the Respondent’s brief of argument filed on 21/11/2018.
He adopted and relied on the said Respondent’s brief in urging that the appeal be dismissed.

I have gone through the issues formulated for the determination of this appeal by Counsel for both parties, and I am of the view that the issue formulated for the determination of the appeal by the parties are the same in substance, but I will rely on the issues formulated for the determination of the appeal on behalf of the Respondent because it is apt in the determination of this appeal.

ISSUES FOR THE DETERMINATION OF THE APPEAL.
ISSUES 1 & 2 (TAKEN TOGETHER)
The learned Counsel for the Appellants submitted that he who alleges must prove. He relied on Sections 131 and 136 of the Evidence Act. He contended that in an application for the enforcement of Fundamental Right, the means of such proof is by affidavit evidence and Exhibits attached therewith.
He relied on the following case:- -OBION ATAKPA VS UDOM EBETOR (2015) 3 NWLR PART 1447 AT PAGE 1.

It was submitted that the learned trial Judge did not base his decision on any evidence. He relied on the following cases:-
– HAMZA VS KURA (2010) ALL FWLR PART 539 PAGE 1070 AT 1073.
– NNEJI VS CHUKWU (1996) 10 NWLR PART 478 PAGE 265.
– MAINAGGE VS GWAMNA (2004) ALL FWLR PART 222 PAGE 1617.
– OKINO VS OBANEBIRA (1999) 12 SCNJ 27.
– BUHARI VS INEC (2008) FWLR PART 437 PAGE 42.
– GARUBA VS YAHAYA (2007) ALL FWLR PART 357 PAGE 862.

Learned Counsel for the Appellants submitted that the ratio decidendi of the trial Court was highly pervasive and has occasioned great injustice to the Appellants. He therefore urged this Court to re-evaluate the evidence.

It was submitted that where the depositions are in conflict in an application for breach of fundamental right, the Court must resolve it by calling oral evidence. He relied on the following cases:-
– UGWU VS PDP (2015) ALL FWLR PAGE 1893 PARAGRAPH 4.
– CPC VS OMBUGADU (2013) ALL FWLR PART 1235 PAGE 51
– FALOBI VS FALOBI (1976) 9-10 SC PAGE 1 PARAGRAPH D.
– ADEKOLA VS AILARA (2011) ALL FWLR PART 572 PAGE 1701.
– EBOHON VS ATTORNEY GENERAL EDO STATE (1997) 5 NWLR PART 505 PAGE 298.

The learned Counsel for the Appellants contended that the Applicant was arrested on 16/8/2017 for the criminal offence he committed on 16/8/2017 (Reference was made to paragraph 6 of the Appellant’s joint counter affidavit on page 25 of the Record of Appeal). And that he was released on 17/8/2017.

He argued that the date of arrest and detention given by the Respondent is 15/8/2017 which is in conflict with the date given by the Appellants. He relied on the case of –AJANI VS TAIWO LPELR (CA/I/27/04) AND AKINSETE VS AKINDUTIRE (1966) 1 ALL NLR PAGE 147.

The learned Counsel for the Appellants stated that the Appellants are Police Officers who are servants of the Nigeria Police Force. He went further that the Nigeria Police Force is charged with the powers of investigation, detention and prevention of crime.

He relied on Sections 4 and 23 of the Police Force Act Cap P 18 Laws of the Federation of Nigeria 2004 made pursuant to Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The learned Counsel referred to paragraphs 6 to 18 of joint Counter Affidavit dated 10/1/2018 on pages 24-27 of the Record of Appeal. He relied on the case of FAWEHINMI VS IGP (2002) 7 NWLR PART 767 PAGE 606 (SC).
He finally urged that this issues be resolved in favour of the Appellants and allow the Appeal.

On the other hand, the learned Counsel for the Respondent stated that the Appellants, have challenged the decision of the trial Court that it failed, refused and neglected to call oral evidence in reaching its decision thereby necessitating setting aside of the Judgment since it has occasioned miscarriage of Justice.

He submitted that in the face of direct conflict on crucial material facts, the learned trial Judge must call for oral evidence. He relied on the following cases:-
– AKINSETE VS AKINDUTIRE (1966) 1 ALL NLR PAGE 147.
– INEGBEDION VS SELO – OJEME & ANOR (2013) 8 NWLR PART 1356 PAGE 211.
– SYLVANUS EZE VS UNIJOS (2017) NWLR PART 1593 PAGE 1 AT PAGES 13-14.
– MARK VS EKE (2004) 17 NSCQR PAGE 60 AT 83-84 RATIO H-A.
– AHMED VS MINISTER INTERNAL AFFAIRS (2002) 15 NWLR PART 790 PAGE 239 AT 257 PARAGRAPH H.

The area of conflict in the affidavit evidence are paragraphs 3 and 9 of the Respondents affidavit on one hand and paragraph 6 of the Appellants’ joint Counter Affidavit.

It was contended by learned Counsel for the Appellants that the difference in the dates deposed to by the parties on when the arrest and detention of the Respondent occurred is what learned Counsel for the Appellants termed to be material contradiction, which he said that the lower Court ought to have invited parties to call oral evidence to resolve.

He submitted that what was before the trial Court is whether the arrest and detention of the Respondent was illegal to have constituted an infringement on the Fundamental Right to liberty of the Respondent. He went further that the request to call oral evidence in resolving the issue of date is to invite the Court to endless academic exercise.

He referred to paragraph 5 of the Counter Affidavit of the Appellants which already admitted paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the Applicants affidavit as true.
It was also submitted that the contradiction on the Counter Affidavit of the Appellants is self-created.

The learned Counsel for the Appellants alleged that the trial Court was speculative in the evaluation of the evidence and that this has occasioned a miscarriage of Justice and he urged this Court to set aside the Judgment.

The learned Counsel for the Respondent submitted that the Appellants who relied on improper evaluation of evidence to set aside a Judgment has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation. He relied on the case of –
– EBLA CONTRUCTION LTD VS COSTAIN (WEST AFRICA) PLC (2011) 6 NWLR PART 1242 PAGE 110 AT 132 PARAGRAPH G.
He contended that the learned Counsel for the Appellants did not specify the evidence improperly evaluated.

The learned Counsel for the Respondent therefore urged that the issues be resolved in favour of the Respondent and dismiss this appeal.

RESOLUTION
This appeal emanated from the decision of the Ogun State High Court in respect of an application for enforcement of Fundamental human Rights of the Applicant who is now the Respondent. The application was supported by affidavit evidence.
The settled position of the law is that Applications to enforce fundamental rights are by the Fundamental rights (Enforcement Procedure Rules), determined by affidavit evidence. The affidavits constitute the evidence. See the following cases:-
– JACK VS UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 5 NWLR PART 865 PAGE 208.
– AG ANAMBRA STATE VS AG FEDERATION (2005) 9 NWLR PART 931 PAGE 572.
Where a cause as in this case is contested on affidavit evidence, the deponents are considered as witnesses and the Court will treat the affidavit as if it were the oral evidence of the witnesses supported by Exhibits if any.
The Court can determine the issues in controversy with the facts sworn to in the affidavits which now constitute evidence.
In this appeal, the Appellants have challenged the decision of the trial Court that the trial Court failed, refused and neglected to call oral evidence in reaching its decision thereby necessitating setting aside of the judgment and that this has occasioned miscarriage of Justice.
But there is a caveat, it is trite law that it is only where there are contested allegations of material facts that the Court ought to invite the parties to call oral evidence to resolve the said conflict. See the following cases:-
– AKINSETE VS AKINDUTIRE (SUPRA)
– INEGBEDION VS SELO-OJEME & ANOTHER (SUPRA).
– MARK VS EKE (2004) 5 NWLR PART 865 PAGE 54.
The area of conflict highlighted on behalf of the Appellants include paragraph 6 of the Appellants joint Counter-Affidavit and paragraphs 3 and 9 of the Respondent’s Affidavit.
In order to get to the root of the issues in controversy, the said paragraphs are set out as follows:-
“(3) That on the 14th day of August 2017, I was at my place of work at Alabata Road, opposite Ogun Osun, River Basin Development Authority where I have a block making industry when my ex-wife Mrs. Motunrayo Adigun came to my place of work at around 4pm and started going round my factory.”

“(9) That on the said 14th day of August 2017, I was at the Osiele Police Post, under Odeda Police Division which is the nearest police station to my place of work to lodge a complaint of nuisance and disturbance of public peace at my work place against my ex-wife and a woman police was detailed to accompany me to my place of work to invite her.”
Paragraph 6 of the Appellants’ Counter Affidavit stated as follows:-
“(6) That on the 16th day of August 2017 at 19.30hrs, the Applicant came to Osiele police post and reported that his ex-wife named Oyekanmi Asiata came to meet him at his block industry located at Ogun Osun River basin stating that he instructed the said woman to leave the site but she refused.”
A perusal of the depositions set out above would reveal that the difference in dates deposed by parties on when the arrest and detention of the Respondent occurred is what learned Counsel for the Appellants has contended to be material contradiction which he stated that the lower Court ought to have invited parties to call oral evidence to resolve.
It is trite law that where there is a conflict in affidavit evidence on a crucial and material issue, a trial Court is expected to invite parties to call oral evidence to resolve the conflict.
See- AKINSETE VS. AKINDUTIRE (SUPRA).
– UGWU & OTHERS VS. PDP & OTHERS (2015) 7 NWLR PART 1459 PAGE 478.
– EZECHUKWU & ANOTHER VS. I.O.C ONWUKA (2016) 5 NWLR PART 1506 PAGE 529.
In this appeal, the main issue in controversy is whether the arrest and detention of the Respondent was illegal as to have constituted an infringement on the fundamental right to liberty of the Respondent.
I am of the humble view that there is no conflict between the affidavit sworn to by the Appellants and the Respondent. This is because by their Paragraph 5 of the joint Counter-Affidavit, the Appellants admitted 14th day of August 2017 as deposed to by the Respondent in Paragraphs 3 and 9 of Respondent’s Affidavit.
Paragraph 5 of the Counter Affidavit of the Appellants stated as follows:-
“That Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the Applicant’s Affidavit in support of his application are (is) true.”
The Appellants by their Joint Counter Affidavits admitted Paragraphs 3 and 9 of the Applicant/Respondent’s Affidavit earlier set out in this Judgment.
It is the law that admitted facts needs no further proof.
See the following cases:- ALHASSAN & ANOTHER VS. ISHAKU & OTHERS (2016) 10 NWLR PART 1520 PAGE 230.
– VEEPEE INDUSTRIES LTD VS. COCOA INDUSTRIES LTD. (2008) 13 NWLR PART 1105 PAGE 486.
– REPTICO S.A. GENEVA VS. AFRIBANK (NIG) PLC (2013) 14 NWLR PART 1373 PAGE 172.
Earlier in this Judgment, I have held that there is no conflict between the joint counter affidavit sworn by the Appellants and the affidavit in support of the Application since Paragraph 5 of the joint counter affidavit admitted the 14th day of August 2017 as deposed to by the Respondent in paragraphs 3 and 9 of the Respondent’s affidavit in support of the application at the lower Court.
However, it is now known in law that even if there is a conflict, it is not in all cases where such a conflict arises that the need to call oral evidence for the resolution of the conflict would exist. For instance, where in addition to the depositions in the affidavits, there are documents attached to the affidavits which are capable of resolving the conflict in the depositions one way or the other, the duty to call for oral evidence to resolve such a conflict would abate and not arise. In such a case the Court can suo motu use the relevant document to resolve the conflict in the depositions contained in the affidavits.
See the following cases:-
– EIMSKIP LTD VS. EXQUISITE IND. LTD (2003) 4 NWLR PART 809 PAGE 88.
– DANA IMPEX LTD VS. AWUKAM (2006) 3 NWLR PART 968 PAGE 544.
– BAWA VS. PHENIAS (2007) 4 NWLR PART 1024 PAGE 251.
– GARBA VS. UNIMAID (1986) 1 NWLR PART 18 PAGE 550.
The conflict which the learned Counsel for the Appellants referred to was in respect of Paragraphs 3 and 9 of the affidavit in support of the application where the Respondent stated that on 14/8/17 he was at the Osiele police post under Odeda Police Division which is the nearest police station to his place of work to lodge a complaint of nuisance and disturbance of public peace at his place of work against his ex-wife. (See paragraph 9 of the affidavit in support of the application on page 3 of the record of appeal)
Paragraphs 16 to 26 of the Respondent/Applicant’s affidavit in support of the application at the trial Court is also relevant and it is hereby set out as follows:-
“16. That as I was trying to explain that she was lying and that if it is true that she came to look for her children, how come she came to look for them in my place of work where they could not possibly be, the 1st Respondent who I observed, has a fiery temper continue to interrupt me, barking at me intermittently and sometimes yelling at me to shut up.
17. That while the aggressive interruption continued, I inquired from him what the relationship is between him and my ex-wife whom I came to report in order to avoid breach of public peace and as I was about to leave resigning myself to fate, the 1st Respondent insisted that I cannot leave the Station and he instructed Corporal Ola Kayode, the 2nd Respondent, to chain me to my back and the 1st Respondent together with one Corporal Ola Kayode his subordinate after chaining my hands to my back descended on me with several slaps and blows on my jaw and fore head.
18. That as I was protesting the infringement of my fundamental right, Corporal Ola Kayode, the 2nd Respondent, started pushing me towards the vehicle of the 1st Respondent in the midst of cacophony of slaps and beating.
19. That as the 2nd Respondent pushed me inside the vehicle, the 1st Respondent started the vehicle and drove off towards Odeda.
20. That on getting to Odeda, they branched at the station and asked me to disembarked which I did.
21. That on getting inside the station, the 1st Respondent spoke with the officers on the counter instructing them to detain me and the handcuff in my hand was hanged to a hook on the black board where suspects names are written and the 1st Respondent thereafter left along with the 2nd Respondent.
22. That I was in that standing state with handcuff hooked to a hanger on the black board from 7pm when I was brought to the station till around 12 midnight before I was dispatched into the cell.
23. That throughout the night I was not offered any food and was denied access to my drugs which I use to manage high blood pressure despite complaining to the Policemen of my health condition.
24. That I was in the cell until 11am of 15th day of August 2017, when I was brought out from the cell and ushered into the presence of Afolabi Nureni of Endurance Blocks, Pa Adeogun a retired Nepa Official and my work place landlord and some vigilate service men who came to see me and ensure my release.
25. That the Divisional Crime Officer of the station initially said I should go and bring Twenty Five Thousand Naira for my bail and had to reduce it to Fifteen Thousand Naira after much appeal from my people and myself.
26. That some other Policeman at the Divisional Crime Branch, counter, etc also collected various sums of money from me totaling about Ten Thousand Naira including money for bail forms and money before my phones, keys were returned to me”.
(See pages 4 – 5 of the Record of Appeal)
The Appellant stated that he was in the police cell till 11.00a.m on 15/8/2017 when he was brought out and released on bail (See paragraph 24 of the affidavit in support of the application on page 5 of the Record of Appeal).
In Paragraphs 27 & 28 of the Affidavit in support of the Application on page 5 of the Record of Appeal, the Applicant attended the Ideal Hospital Camp, Abeokuta for Medicare and he was treated and issued a Medical Report copy of which was attached as Exhibit “B”.
Exhibit “B” showed that the Applicant reported in the hospital on 15/8/2017. He was reportedly beaten the previous day 14/8/2017 by a Policeman.
In view of the foregoing I am of the view that Exhibit ”B” has confirmed that the Applicant was at the police station where he was beaten and detained on 14/8/2017 and treated at the hospital on 15/8/2017.
The said Exhibit “B” attached to the affidavit of the applicant has resolved conflict if any as far as the date he was detained and beaten on 14/8/17 is concerned.
In a sudden twist, the Appellants by their paragraph 6 of the same Joint Counter Affidavit deposed to a different date i.e. 16/8/2017 as the date of arrest and detention of the applicant/Respondent.
The contradiction in the Appellants’ Joint Counter Affidavit as to the date of arrest and detention of the Respondent is self-created and it is in my view an attempt to be clever by half. The Joint Appellants (i.e. 1st & 2nd) behaved like an Ostrich by that averment. They buried their head in the sand thinking nobody will see them while the remaining part of their bodies is exposed.
The contradiction in the Appellants Joint Counter Affidavit as to the date of arrest and detention of the Applicant/Respondent is in no way a material contradiction in the affidavit of the parties to necessitate the calling of oral evidence to resolve.
In ARJAY LTD & OTHERS VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR PART 820 PAGE 577, (2003) 2 – 3 SC PAGE 1, it was held among others as follows per Ogudare JSC:-
“…where a party files affidavits and there are contradictions in those affidavits, that only goes to destroy, or at least weaken the case being canvassed by that party through his affidavit evidence. It is not a case of oral evidence being required to resolve the contradictions.”
The learned trial Judge was therefore right when he held as follows:-
“In this instance, by the depositions in the Counter- Affidavit, the Respondents (i.e. Appellants) have not denied the arrest of the Applicant on or about 14/8/2017.”
It is trite law that there is a difference between contradictions in an affidavit filed by a party and contradictions in the affidavits of the parties. In the former, the Court is not bound to call oral evidence as the contradictions (as in this case) are self-created, while in the latter case the Court is bound to call oral evidence.
See- MOMAH VS. VAB PETROLEUM INC. (2000) 4 NWLR PART 654 PAGE 534.

The learned Counsel for the Appellants in paragraph 4.21 of the Appellants’ brief of argument alleged that the trial Judge has a predetermined mind to give Judgment against the Appellants despite the contradictions in the case which are in my view unfounded.

The Appellants’ Counsel was not polished in his language and has not been fair to the learned trial Judge who carried out his duty appropriately by properly evaluating the material evidence in reaching his decision.
An Appellate Court should not be a forum for making censorious stricture on the conduct of proceedings at a lower Court.
The learned Counsel for the Appellants has alleged that the lower Court was speculative in the evaluation of evidence.

It is trite law that an Appellant who relies on improper evaluation of evidence to set aside a Judgment has an uphill task, the onus is on him to identify or specify correctly the evidence improperly evaluated to show that if the error complained about had been corrected, the conclusion reached would have been different and in favour of the party complaining of wrong evaluation.
See- EBLA CONSTRUCTION LTD VS. COSTAIN (WEST AFRICA) PLC (2011) 6 NWLR PART 1242 PAGE 110.

The learned Counsel for the Appellants was unable to specify any tangible evidence improperly evaluated in this case. The learned trial Judge concisely appraised the facts in the affidavits of the parties, demonstrated dispassionate consideration of the issues properly raised and appropriately applied the relevant statutes and legal authorities.

The learned trial Judge found and held that the Appellants i.e. Respondents have not denied the arrest of the Applicant (now Respondent). It was also held that the arrest, detention and torture of the Applicant by the 1st and 2nd Respondents constitutes a breach of his fundamental rights as enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended.)

Consequent upon the foregoing, the issues in this appeal are hereby resolved in favour of the Respondent and against the 1st and 2nd Appellants jointly and severally.
In the result, this appeal lacks merit and it is hereby dismissed.
There shall be N100,000.00 One Hundred Thousand Naira costs in favour of the Respondent and against the 1st and 2nd Appellants jointly and severally.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the draft of the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.

My learned brother has lucidly and comprehensively considered and resolved the issues that came up for determination of this appeal. I have nothing else useful to add in this appeal. Therefore, I agree that the appeal lacks merit and is accordingly dismissed.
I abide by the consequential orders made in the lead judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit of reading in draft, the lead judgment just delivered by my learned brother JIMI OLUKAYODE BADA, JCA. I agree with the reasoning and conclusion therein.

The law is trite that it is only where there are conflicts in contested material facts in affidavits of parties that there is the need to call oral evidence to resolve the conflict.
In DANIEL VS. AYALA (2019) 18 NWLR (PT. 1703) 25 AT 36-37, PARAS. F-A, Nweze, JSC held as follows:
“Now, the truth of the matter, as this Court has held in many cases, is that an affidavit is a deposition by the deponent stating, clearly his factual position on the issue for considerations. Once the facts deposed to in an affidavit have not been controverted, such facts must be taken as true except they are moonshine. It is only where there are contested material facts that the Court ought to invite the parties to call oral evidence to resolve the said conflict. The decisions on these prescriptions are many. Only one or two may be cited here, BUHARI V. OBASANJO (2003) 17 NWLR (PT.850) -587, 657 – 658; AKWA V. C.O.P (2003) 4 NWLR (PT. 811) 461; AKPABUYO LOCAL GOVT V. EDIM (2003) 1 NWLR (PT. 800) 23; EZE V. UNIJOS (2017) 17 NWLR (PT. 1593) 1, 14; INEGBEDION V. SELO-OJEMEN AND ANOR (2013) 1-2 SC (PT 11) 59; (2013) 8 NWLR (PT. 1356) 211; ALAGBE V. ABIMBOLA (1978] 2 SC 39; AKINSETE V. AKINDUTIRE (1966) 1 SCNLR 389.”
The reliefs sought in the suit before the lower Court in the main is the declaration that the arrest, detention and assault of the Respondent by the Appellants was unlawful. There is no conflict in the affidavit of the parties that the Respondent was arrested or detained. The fact of the arrest and detention of the Appellant was not in dispute. That is the material fact for the determination of the case at the lower Court. The fact of the time and date of the arrest was not a material fact in the determination of the cause of action of the Respondent before the lower Court. There was no conflict in the affidavit of the parties on material facts. I totally agree with my learned brother that the need to call for oral evidence did not arise.

It is for the above and the more elaborate reasons contained in the lead judgment that I too dismiss this appeal and affirm the decision of the lower Court.

Appearances:

ADEYEMI OLUKOYA For Appellant(s)

K. J. YEKINI, with him, MR. WALE BABAJIDE For Respondent(s)