OMAME v. NPF & ORS (2021)

OMAME v. NPF & ORS

(2021)LCN/15514(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/A/341/2014

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Uchechukwu Onyemenam Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Between

MRS ARONKE OMAME APPELANT(S)

And

1. NIGERIA POLICE FORCE 2. INSPECTOR GENERAL OF FORCE 3. COMMISSIONER OF POLICE (FCT POLICE COMMAND) 4. HON. (DR) PAT ASADU RESPONDENT(S)

 

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is in opposition of the decision of the High Court of Federal Capital Territory delivered by Jude O. Okeke, J. on 14th February, 2014, in SUIT NO: FCT/HC/CV/M/3984/2013; wherein the learned trial Judge dismissed the objection of the Appellant to the 4th Respondent’s counter affidavit and then proceeded to dismiss on the merit the Appellant’s application for the enforcement of her fundamental human right.

The Appellant initiated her suit at the trial Court via Originating Motion on Notice dated and filed on 3rd July, 2013; against the Respondents seeking for her fundamental rights, claiming the following relief:
“AN ORDER restraining all the Respondents jointly and severally, whether by themselves or by their officers, agent, servants, privies or otherwise howsoever described from prompting, initiating and/or setting in motion or directly arresting/further arresting, detaining, harassing or in any other manner infringing on the fundamental rights of the Applicant as guaranteed by Section 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) ”

The trial Court on 14th February, 2014, delivered its judgment and held as follows:
“By reasons of all I have labored to say above, I hold that the Applicant failed to establish on preponderance of evidence that the 1st to 3rd Respondents threatened to deal with her if she failed to produce the N50,000,000.00 and on account thereof, her right to person liberty is in imminent danger of being trampled upon by the Respondents”.

The learned trial Judge entered judgment in favour of the Respondents. The Appellant, dissatisfied with the decision of the trial Court, approached this Court by a Notice of Appeal filed on 28th April, 2014.

In accordance with the Rules of this Court, parties duly filed their relevant processes; the Appeal was heard on 8th February, 2021. From the records, although the 1st-3rd Respondents were served on 5th February, 2021, at the Force Headquarters, they were not present in Court at the hearing. MR. OYEBODE withdrew Motion on Notice filed 3rd August, 2014, and the same was consequently struck out.

Before MR. OLAWALE OYEBODE for the Appellant argued the appeal; MR. TOBECHUKWU NWEKE with MALVIN OPUTA UZOAMAKA IKPEAZU Esq. for 4th Respondent adopted their brief along with an application filed 11th August, 2014, which was argued in the said Respondent’s brief in urging the Court to strike out Grounds 4 and 5 of the Appellant’s grounds of appeal.

In response and in arguing the appeal, MR. OYEBODE Esq. adopted and relied on the Appellant’s Reply brief and brief filed on 26th August, 2014 and 2nd June, 2014; respectively, in urging the Court to discountenance the 4th Respondent’s application and to allow the Appeal. Thereafter, MR. NWEKE adopted the 4th Respondent’s brief filed on 11th August, 2014, in urging the Court to dismiss the appeal.

PRELIMINARY OBJECTION
The 4th Respondent in line with his application raised a Preliminary Objection in his 4th Respondent’s brief of argument; he urged the Court to strike out grounds 4 and 5 of the Grounds of Appeal of the Appellant.

The learned counsel for the 4th Respondent formulated 3 issues for determination as follows:
A. Ground 4 of the Grounds of Appeal ought to be struck out in that it is a ground challenging the award of cost and no leave of Court was obtained.
B.

Grounds 5 of the Grounds of Appeal ought to be struck out in that being an omnibus Ground of appeal it cannot be used to challenge specific errors as shown in the particulars of error.
C. For the reasons that the incompetent grounds 4 and 5 were argued along with grounds 2 and 3, issue ii distilled therefrom, as well as the argument thereon in the Appellant’s brief ought to be stuck out.

SUBMISSIONS ON OBJECTION 1
Ground 4 of the Grounds of Appeal ought to be struck out, in that it is a ground challenging the award of cost and no leave of Court was obtained.
The learned counsel for the 4th Respondent argued that Ground 4 of the Grounds of Appeal ought to be struck out on the ground that it is a ground challenging the award of cost and no leave of Court was obtained. He relied on Section 241 (2) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); and the cases of U.B.A V. GMBH (1989) 3 NWLR (PART 110) 373 at 399; A.C.B V. OKONKWO (1997) 1 NWLR (part 480) 194 at 207; to urge the Court to strike out ground 4 of the Appellants ground of appeal.

​By the Appellant’s reply brief of argument filed on 26th August, 2014, but deemed properly filed and served on 3rd May, 2018; the learned counsel for the Appellant in response to the Preliminary Objection of the 4th Respondent submitted that, ground 4 of the Notice of Appeal is competent and valid regardless of whether or not leave was obtained. He relied on the cases of AYANBOYE & 2 ORS V. BALOGUN (1990) 5 NWLR (part 151) 392, 410 D-E; ANYASO V. ANYASO & 4 ORS (1998) (NWLR) (part 564) 150, 169 E; TUMO & ANOR V. MURANA (2000) 12 NWLR (part 681) 370 384 A-B; OYEDEJI & ANOR V. AKINYELE & 2 ORS (2002) 3 NWLR (PART 755) 586, 622 623 D-A; AFRICAN CONTINENTAL BANK LIMITED & ANOR V. AJUGWO (2012) 6 NWLR (part 1295) 97, 133 F-G.

SUBMISSIONS ON OBJECTION 2
Ground 5 of the Grounds of Appeal ought to be struck out in that being an omnibus ground of appeal it cannot be used to challenge specific errors as shown in the particulars of error.
It is the contention of the learned counsel for the 4th Respondent that ground 5 of the Grounds of Appeal cannot be used to challenge specific errors, being an omnibus ground of appeal. In urging the Court to strike out ground 5, the learned counsel relied on the case of C.E.C.T.C.S. V. IKOT (2000) 23 W.R.N 156-157.

The learned counsel for the Appellant on this issue submitted that both ground 5 of the Notice of appeal as well as each of the particulars of error did not offend the rule that omnibus ground cannot legitimately possess particulars more so, when the particulars are specific complaint of errors in law. It was further submitted that the ground of appeal and its particulars under attack did not extend to specific complaints of errors in law as contended in the argument of the 4th Respondent.

SUBMISSIONS ON OBJECTION 3
For the reasons that the incompetent grounds 4 and 5 were argued along with grounds 2 and 3, issue ii distilled therefrom as well as the argument thereon in the Appellant’s brief ought to be stuck out.
The learned counsel for the 4th Respondent submitted that since grounds 4 and 5 were argued along with grounds 2 and 3, issue ii distilled therefrom, as well as the argument in the Appellant’s brief of argument ought to be struck out. He relied on the cases of NGIGE V. OBI (2006) 14 NWLR (part 999) 1 at 165 (Para’s C-H); HONIKA SAWMILL (NIG) LTD V. HOFF (1994) 2 NWLR (part 326) 252 at 262; NWADIKE V. IBEKWE (1989) 4 NWLR (Part 67) 718.

The learned counsel urged the Court to strike out grounds 4 and 5 of the grounds of appeal and the Appellant’s issue ii and the argument distilled therefrom.

The learned counsel for the Appellant submitted that, all the 5 grounds of appeal in the Notice of appeal are valid and competent. He further submitted that the preliminary objection seeks to agitate the same issues on the 4th Respondent’s motion on notice filed on 11th August, 2014, thereby constituting an abuse of Court process. He relied on the cases of MESSERS NV SCHEEP & ANOR V. THE MV’S ARAZ & ANOR (2000) 15 NWLR (PART 691) 622, 664 G; ARUBO V. AIYELERU & 5 ORS (1993) 3 NWLR (PART 280) 126.

I will proceed to determine the 3 grounds of the 4th Respondent’s Objection alongside the other as they can all be answered together.

DETERMINATION OF OBJECTION
In resolving the Preliminary Objection, recourse should be made to grounds 4 and 5 of the Appellant’s grounds of appeal.
“Ground 4
The learned trial Judge erred in law and fact and thereby occasioned a miscarriage of justice to the Appellant when it was held at page 21 of the Ruling/Decision that:
“The suit is dismissed with cost assessed at N10,000 each in favour of the 1st to 3rd Respondents on the one hand and the 4th Respondent on the other”.
PARTICULARS
i. Award of costs is predicated on exercise of discretion which must be exercised judicially and judiciously.
ii. The evidence materials as well as the surrounding circumstances do not warrant a punitive award of costs.
iii. The sum of N10,000 awarded each in favour to each of the 1st to 3rd Respondents on the one hand and the 4th Respondent on the other is outrageous and not predicated on fair judicious or reasonable exercise of discretion.

Ground 5
The Ruling/Decision of the lower Court is against the weight of evidence.
PARTICULARS
i. The learned trial Judge wrongfully resolved the sole issue raised against the Appellant in favour of the Respondent when the 4th Respondent did not lodge any valid counter affidavit or process and the Appellant’s case before it was uncontroverted and/or unchallenged.
ii. The lower Court ignored the evidence and material in determining the suit before it, as well as shut its eyes to the obvious”.

It is the argument of the 4th Respondent’s counsel that ground 4 ought to be struck out on the ground that it is a ground challenging the award of cost and no leave of Court was obtained. On the importance of leave to appeal against cost where leave of the Court is required, the Court in UKIRI V. U.B.A (2016) 3 NWLR (PART 1500) held as follows:
“The issue of failure to obtain leave to appeal against cost was only argued under issue No. 2 of the respondent. So, whether it was raised as a preliminary objection or not or whether the preliminary objection was argued as such or not in the respondent’s brief of argument, it would never deter the Court of Appeal from considering the same, since it questions the jurisdiction of the Court to entertain the ground of appeal on the award of costs N3,000.00. Therefore, so long as the issue has been raised, the Court of Appeal ought to pay adequate attention to it and consider same. [Omokuwajo v. FRN. (2013) 9 NWLR (Pt.1359) 300 referred to.] (Pp, 457, paras. F-H)”
​In this appeal, ground 4 of the Appellant’s grounds of appeal is no doubt one of the grounds of appeal against the final judgment of the trial Court and the Appellant only complained of cost in the said ground 4 of his grounds of appeal. This is to say, ground 4 is a ground among other grounds and as such, not being the sole ground of appeal, it does not require leave of the Court to have a ground of appeal against cost. I mean, since the appeal is not a complain solely against the cost awarded by the trial Court, but an appeal against the entire decision for which the ground on cost is one of the grounds, an appeal without leave in the circumstance does not make the ground of appeal on cost incompetent. Where an award of costs is made in the final judgment, leave is not required to appeal against the same. See: TUMO V. MURANA (2000) 12 NWLR (part 681).

I therefore discountenance the argument of the 4th Respondent’s counsel on this issue. I hold that the Appellant does not need the leave of the Court to appeal on cost in a single ground of an appeal which raised other grounds.

​The learned counsel for the 4th Respondent argued that ground 5 of the ground of appeal ought to be struck out on the ground that it is an omnibus ground of appeal and that it cannot be used to challenge specific errors as shown in the particulars of error.

An omnibus ground of appeal, which is a complaint of the weight of evidence, is generally regarded as a ground of fact in civil cases. See MARCUS OPUIYO & ORS. V. JOHNSON OMONIWARI (Deceased) & ANOR (2007) LPELR-2751 (SC), It is now settled law that an appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law. See EMMANUEL BEN v. THE STATE (2006) LPELR-770 (SC).
The Supreme Court in OSOLU V. OSOLU & Ors (2003) LPELR-2810(SC) held thus:
“An omnibus ground of appeal implies that the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful party, or the trial Judge either wrongly accepted, evidence or the inference he drew, or conclusion he reached based on the accepted evidence cannot be justified. An omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial Court.” Per Musdapher, J.S.C. (Pp. 35-36, paras. G-B).
​Accordingly, when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced. See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with the appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence. See: Awusa V. Nigerian Army (2018) LPELR – 44377 (SC); Osolu V. Osolu(2003) 11 NWLR (Pt 832) 608 SC This in essence means a ground of appeal against the weight of evidence does not relate to the challenge of error in law made by the Court whose decision is appealed against.

Upon due consideration of ground 5 of the Appellant’s grounds of appeal; I hold the view that the particulars of the said ground did not challenge specific errors. The said particulars of ground 5 of the Appellant complained that with the counter affidavit of the 4th Respondent, the affidavit evidence of the Appellant remained uncontroverted and so the trial Court’s decision was against the weight of evidence. The Appellant in the particulars complained that the trial Court ignored the unchallenged evidence of the Appellant in determining the suit.

I therefore hold that the Appellant’s ground 5 did not, by its particulars, offend the rules of omnibus ground of appeal. I discountenance the argument of the 4th Respondent’s counsel on this ground of objection.

The argument of the 4th Respondent’s counsel that for the reason that the incompetent grounds 4 and 5 were argued along with grounds 2 and 3, issue ii distilled and the argument ought to be struck out, has become academic having held that grounds 4 and 5 of the grounds of appeal are valid.

In all I find no merit in the preliminary objection of the 4th Respondent and the same is consequently dismissed.
I shall proceed to resolve the issues in the main appeal.

MAIN APPEAL
The learned counsel for the Appellant raised 2 issues for determination as follows:
1) Whether having regard to Section 15 (4) Interpretation Act Cap 123 LFN, 2004, the lower Court acted erroneously upon the counter affidavit of the 4th Respondent filed on 24th July, 2013, in dismissing the suit of the Appellant, having been filed outside the five (5) days statutory period mandatorily stipulated by Order 2 Rule 6 Fundamental Right Enforcement (Procedure).
2) Whether having regard to the material as well as evidence before it, the lower Court acted erroneously in holding that the Appellant did not discharge the onus in proving that her fundamental rights to personal liberty was being, or likely to be, violated by the detention of the Appellant was valid as well as resultantly awarding costs of N10,000 to each of the 1st to 3rd Respondents on the one hand and the 4th Respondent on the other.

The learned counsel for the 4th Respondent formulated 2 issues for determination as follows:
1) Whether having regard to Section 15 (4) Interpretation Act Cap 123 LFN, 2004 and Section 122 (2) (g) of the Evidence Act, 2011, the lower Court acted erroneously in holding that the counter affidavit of the 4th Respondent filed on 24th July, 2013 was filed within the five (5) days statutory stipulated by Order 2 Rule 6 Fundamental Rights Enforcement (Procedure) Rules, 2009.
2) Whether having regard to the affidavit and documentary evidence placed before the lower Court, the lower Court acted erroneously in holding that the Appellant failed to discharge the burden of proof placed on her, that the arrest and detention of the Appellant was justified in law.

The 1st to 3rd Respondents did not file any brief and so did not have anything to urge on the Court. Upon careful inspection of the 2 issues raised by Appellants and the 4th Respondent respectively; I have the view that the 2 issues raised by the Appellants, which emanate from the Grounds of Appeal and akin to the 4th Respondent’s issues will determine this Appeal. I shall therefore determine this appeal on the referred two issues.

SUBMISSIONS ON ISSUE 1
Whether having regard to Section 15 (4) Interpretation Act, Cap 123 LFN, 2004, the lower Court acted erroneously upon the counter affidavit of the 4th Respondent filed on 24th July, 2013 in dismissing the suit of the Appellant, having been filed outside the five (5) days statutory period mandatorily stipulated by Order 2 Rule 6 Fundamental Right Enforcement (Procedure).
By the Appellants brief of argument settled by Dr. OIumide Ayeni Esq., the learned counsel argued that the lower Court was in error when it suo motu relied on Section 122 (2) (g) Evidence Act, 2011; in according validity to the counter affidavit of the 4th Respondent and relying on it in making findings, when same is invalid. He relied on Order 2 Rule 6 Fundamental Right Enforcement (Procedure), 2009.

It is the argument of the learned counsel that the 4th Respondent filed his counter affidavit outside the mandatory 5 days period allowed by law and no leave of the Court was sought to regularize the same by extension of time. He relied on Section 15 (4) Interpretation Act, Cap 123 LFN, 2004; Section 2 Rule 6 Fundamental Rights (Enforcement) Rules, 2009;AKINWE V. AKINFOLARIN & 6 ORS (2011) 13 NWLR (PART 1263) 135, 157-158 H-B; OLATUNJI V. OLAKUNDE & 6 ORS (2012) 1 NWLR (part 1280) 133, 157 A-B.

By the 4th Respondent’s brief of argument settled by Mr. Tobechukwu Nweke, it was submitted that the trial Court was right to have relied on Section 122 (2) (g) of the Evidence Act, 2011; to remove Saturday and Sunday as public holiday in computing the 5 days which the 4th Respondent has to file his counter affidavit.

The learned counsel for the 4th Respondent submitted that, it is not correct that the suit was dismissed upon placing reliance on the 4th Respondent’s counter affidavit, as the trial Court also placed reliance on the affidavit of the 1 to 3rd Respondents, hence, no miscarriage of justice was occasioned.

RESOLUTION OF ISSUE ONE
Order II Rule 6 of the Fundamental Right Enforcement Procedure Rule 2009 provides thus:
6. Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.

Section 122 (2) (g) Evidence Act, 2011; on its own provides as follows:
(1) “No fact of which the Court shall take judicial notice under this Section needs to be proved.
(2) The Court shall take judicial notice of:
(g) the divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act”.

Section 15 (4) of the Interpretation Act, Cap 123 LFN, 2004; for ease of understanding provides thus:
“Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period”.

Section 15 (5) provides that:
“In this Section “holiday” means a day which is a Sunday or a public holiday”.

The grouse of the Appellant is that, the trial Court relied on Section 122 (2) (g) of the Evidence Act, 2011; suo motu, to determine the computation of time in respect of the counter affidavit of the 4th Respondent and therefore erred in law.

In general, a Court is entitled at any stage, to apply any relevant provision of an extant statute even if not specifically referred to or relied on by the parties to a case. There is no known rule in the interpretation of the provisions of a statute and their application to the facts of a case, that requires a Court to invite parties to address it or be given a hearing before a Court can refer to or rely on any other Section or provisions of a statute other than that relied on by the parties. In other words, a Court can suo motu properly refer to and rely on any existing statute for the decision of an issue or point that is relevant to the case before it. Reference to or reliance on a statute not relied on by the parties in a case by a Court, does not call for address(es) from the parties as it is within the right and duty of a Court to ensure the application or compliance with the provisions of an extant statute or law in a case. It is a misconception to say that such reference and reliance by a Court constitutes raising an issue suo motu or an infringement of the right to fair hearing on the ground that the parties ought to be heard before the reference and reliance by the Court. After all, both the parties and the Court are bound by all the provisions of a statute or law applicable to the determination of cases before the Court, and so, it is not right to say that reference to any Section of a statue not relied on by the parties in a case is filing the gabs of a party’s case. See: AKINREMI & ANOR V. AKINREMI & ORS (2017) LPELR-42235(CA).

​This action was commenced by way of Originating Summons, for the enforcement of the fundamental right of the Appellant. The Fundamental Right Enforcement (Procedure Rule) 2009; permits the 4th Respondent to file his counter affidavit within 5 days upon service of the Originating processes. However, the referred rule did not provide for the mode of computation of the days for the filing of a counter affidavit and a written address in opposition to a fundamental human right application. Therefore, recourse must be had to other enactments of the law, particularly, the Interpretation Act; by the Courts, in computing the 5 days. This is more so as the Rule did not state whether or not public holiday is inclusive in the 5 days allowed for the 4th Respondent to file his counter affidavit.
I want to stand on the long settled position of the law that a law Court in interpreting a statute will refrain from ascribing to the clear and unambiguous words of a statute, their natural meaning if doing so will result in absurdity. See: MAMUDA V. STATE (2019) LPELR-46343(SC); GANA V. SDP & ORS (2019) LPELR-47153(SC), Therefore, where there is a lacuna in a procedure laid down by a statute, it is the duty of the Court to fill such lacuna judiciously for the interest of justice in such a way that it won’t amount to miscarriage of justice. By this means, a Judge enhances the law by bringing to bare, the intention of the legislature for the justice of all.

The quarrel of the Appellant herein inter alia is that, the trial Court erred in law to have relied on Section 122 (2) (g) of the Evidence Act, 2011; to take judicial notice of the Interpretation Act which excludes Sunday and public holiday in the computation of days within which an act is provided by the law to be carried out within 6 days. Flowing from what I said above on the position of the law, I fail to fault the trial Court for employing the provision of Section 122 (2) (g) of the Evidence Act, 2011; in taking judicial notice of Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004; to address the issue of computation of time for the 4th Respondent to file his counter affidavit, since the Fundamental Right Enforcement (Procedure Rule) 2009; did not specify whether or not Saturdays and Sundays should be calculated in the 5 days allowed by the Act.
Furthermore, going by the provisions of Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004; already reproduced above, a careful inspection reveals that where by an enactment such as the Fundamental Right Enforcement (Procedure Rule) 2009, any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period. It therefore means that, if Saturday and Sunday are removed as public holidays, the 4th Respondent’s counter affidavit was filed within the five days prescribed by Order ll Rule 6 of the Fundamental Right Enforcement Procedure Rule, 2009. This is to say, in that circumstance the 4th Respondent’s counter affidavit was rightly adjudged valid by the trial Court.
​I hold that Order ll Rule 6 of the Fundamental Right Enforcement Procedure Rule, 2009; having not made clear provisions of whether Saturday and Sunday being public holidays should be computed in the 5 days prescribed for the 4th Respondent to file his counter affidavit, the trial Court was right to have relied on Section 122 (2) (g) Evidence Act, 2011; to apply Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004; in the computation of time of the 4th Respondent to file his counter affidavit. The decision of the learned trial Judge cannot therefore be said to have occasioned a miscarriage of justice as the same was made judicially and judiciously in the interest of justice.

Considering the dispute of the Appellant further, I fail to correspond with the argument of the learned counsel for the Appellant that the suit was dismissed upon sole reliance on the 4th Respondent’s counter affidavit. From the records, the learned trial Judge at page 120 of the record of appeal sufficiently placed reliance on the counter affidavit of the 1st to 3rd Respondents where they denied threatening the Appellant and as such, the decision of the trial Court cannot be said to have caused miscarriage of justice even where it is held that the 4th Respondent’s counter affidavit is incompetent.

On the issue as to whether the learned trial Judge erred in law to have suo motu relied on Section 122 (2) (g) Evidence Act, 2011; to apply Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004. Despite standing the risk of repetition, I shall reproduce for ease of comprehension Section 122 (1) & (2) (g) Evidence Act, 2011; which provides as follows:
(1) “No fact of which the Court shall take judicial notice under this Section needs to be proved,
(2) The Court shall take judicial notice of:
(g)The divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act”,
By this Section of the Evidence Act which mandates the trial Court to take judicial notice of the divisions of time, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act among other things; I held above that the trial Court rightly relied on Section 122 (1) & (2) (g) Evidence Act, 2011; to apply Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004. The issue therefore, is whether the trial Court could suo motu do that. The resolution is simple, whereby Section 122 (1) Evidence Act, 2011; provides that any fact that the law under this referred Section authorizes the Court to take judicial notice does not require proof; it means, any fact which a Court rightly takes judicial notice is in law established. An established fact is fact that has been proved and so can be relied on by the Court to arrive at its decision. Also, the provisions of Section 122 (2) (a) & (b) Evidence Act, 2011; permits the Court to take judicial notice of laws and enactments having the force of law now or previously in Nigeria; and Public Acts or Laws passed or to be passed by the National Assembly and State House of Assembly. By the referred provisions of the Evidence Act, the trial Court could suo motu rely on the Interpretation Act to compute the 5 days within which Order ll Rule 6 of the Fundamental Right Enforcement Procedure Rule, 2009; mandates a party to perform an act, but wherein such enactment did not provide for the computation of the running of the time. This is for the fact that the Court is entitled to take judicial notice of Interpretation Act, Cap 123 LFN, 2004; which is an existing law in Nigeria. The referred Act provides for the computation of time to carry out an act by a party whereby, the days for the performance of the said act does not exceed 6 days to exclude Sunday and public holiday. I hold that the trial Court who in law can take judicial notice of public holidays in Nigeria could suo motu rely on Section 15 (4) & (5) of the Interpretation Act, Cap 123 LFN, 2004; in the computation of the 5 days provided for in Order ll Rule 6 of the Fundamental Right Enforcement Procedure Rule 2009; to exclude Saturday and Sunday. Being a fact that I had earlier on in this judgment held that the trial Court rightly took judicial notice of, calling for the addresses of counsel on the issue though desirable is merely fanciful. Failure for the trial Court to be addressed on a fact it has taken judicial notice of does not amount to a procedural error which can affect the decision of the said Court.

Finally, I resolve this issue in favour of the 4th Respondent and against the Appellant.

SUBMISSIONS ON ISSUE 2
Whether having regard to the material as well as evidence before it, the lower Court acted erroneously in holding that the Appellant did not discharge the onus in proving that her fundamental rights to personal liberty was being, or likely to be, violated by the detention of the Appellant was valid as well as resultantly awarding costs of N10,000 to each of the 1st to 3rd Respondents on the one hand and the 4th Respondent on the other.
The learned counsel for the Appellant argued that the counter affidavit of the 1st to 3rd Respondents deposed to on 24th July, 2013, did not rebut the allegation that the 1st to 3rd Respondents threatened to deal with the Appellant and that the trial Court failed to consider the likelihood of the threat. He relied on the cases of OKEREKE V. EJIOFOR & ANOR (1996) 3 NWLR (PART 434) 90; OLUJIMI V. EKITI STATE HOUSE OF ASSEMBLY & ANOR (2009) 11 NWLR (PART 1153) 464, 484; UGWUANYI V. NICON INSURANCE PLC (2004) 15 NWLR (PART 897) 612, 631 G-H. It was further submitted that the affidavit in support of the Motion deposed to on 3rd July, 2013 by Peter Abang Esq., set out in details the sequence of the abuse and/or the likely abuse of the Fundamental Rights of the Appellant by the Respondents during investigation.

It was argued by the learned counsel that the dismissal of the suit by the trial Court on grounds of lack of proof under Section 131 to 134 of the Evidence Act, is perverse as the material and weight of evidence before the trial Court demonstrates otherwise. He relied on the cases ofLAGGA V. SARHUNA (2008) 16 NWLR (PART 1114) 427, 474 D-F; ODIBA V. AZEGE (1998) 9 NWLR (PART 566) 370, 380 D-E; EDOHO V. THE STATE (2004) 5 NWLR (PART 865) 17, 47 A-C.

​In urging the Court to invoke Section 15 of the Court of Appeal Act to re-evaluate the evidence, the learned counsel relied on ODIBA V. AZEGE (1998) 9 NWLR (PART 566) 370, 384 A-B

The learned counsel contended that the 1st to 3rd Respondents are not debt collectors and ought not to be involved in the matter for recovery of debt. He placed reliance on the cases of IGWE & ORS V. EZEANOCHIE & ORS (2010) 7 NWLR (PART 1192) 61, 63 B-C; ABDULLAHI V. BUHARI & ANOR (2004) 17 NWLR (PART 902) 278, 303 A-B. It was submitted that the trial Court erroneously relied on Section 4 of the Police Act in dismissing the Appellant’s case.

The learned counsel for the 4th Respondent on this issue reproduced a portion of the judgment of the trial Court and contended that it was not appealed against. It was also contended that the only relief is an injunctive relief restraining the 1st to 3rd Respondents from infringing on the personal liberty of the Appellant, which arose from the allegation of threat by the 1st to 3rd Respondent to deal with the Appellant.

On whether the Appellant proved the alleged threat, the learned counsel relied on Section 135 and 136 of the Evidence Act, MR. C.I.D. MADUABUM V. HON. BEN NWOSU (2010) 13 NWLR (PART 1212) 623 AT 630; MELIFONWU V. EGBUJI (1982) 9 SC; ADIGHIJE V. NWAOGU (2010) 12 NWLR (PART 1209) 419 AT428.

The learned counsel submitted that the only evidence placed by the Appellant at the trial Court was deposed to by Peter Abang of counsel, whose evidence amounted to hear say as he failed to give details of how the information he deposed to came to his knowledge.

RESOLUTION OF ISSUE 2
SECTION 4 OF THE NIGERIA POLICE ACT, 1943 provides as follows:
“The police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act.”
The Supreme Court in interpreting the above Section in OLATINWO V. THE STATE (2013) LPELR-19979 (SC) held thus:
“Section 4 of the Police Act stipulates that – “The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property…” Per AKA’AHS, J.S.C
The primary duty of the Police by Section 4 of the Police Act is the prevention, detection and investigation of crime; and the prosecution of offenders: See: IBIYEYE V. GOLD (2012) ALL FWLR (PT 659) 1074; OKAFOR & ANOR V. AIG POLICE ZONE ll ONIKAN & ORS (2019) LPELR-46505 (CA).

It is the contention of the Appellant that the 1st to 3rd Respondent’s threatened her to produce the N50,000,000 paid by the 4th Respondent in respect of the property.

​The right to dignity of human person, under Section 34 of the Constitution of the 1999 as amended is not a cloudy one. The Constitution is clear on what it entails. That Section provides:
“34-(1) every individual is entitled to respect for the dignity of his person, and accordingly-
a. No person shall be subjected to torture or to inhuman or degrading treatment,
b. No person shall be held in slavery or servitude; and
c. No person shall be required to perform forced or compulsory labour.
2. For the purposes of Subsection (1) (c) of this Section, “forced or compulsory labour” does not include-
a. any labour required in consequence of the sentence or order of a Court;
b. any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;
c. in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;
d. any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or
e. any labour or service that forms part of —i. normal communal or other civic obligations for the well-being of the community; ii. Such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly; or iii. Such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly”.

In the instant appeal, the Appellant’s contention is that the police do not have the power to interfere in a purely civil matter for recovery of debt of the 4th Respondent. I agree with the learned counsel for the Appellant only to the extent that the police does not recover debts as they lack the power to do so. However, in the present case, it is not in dispute that the 1st to 3rd Respondent arrested the Appellant, brought her to Abuja from Lagos, took her statement and admitted her on bail the same day; upon a petition of fraudulently obtaining money from the 4th Respondent.
It is the duty of the 1st to 3rd Respondents to prevent, detect and investigate crime in the Country. The 1st to 3rd Respondents cannot be said to have acted outside the scope of their duties as reproduced above, considering the fact that a criminal act of fraud was reported by the 4th Respondent via a petition to the 1st to 3rd Respondents. The 1st to 3rd Respondent acted within the scope of their duties as provided under Section 4 of the Police Act (supra), as they have the power to detect and prevent crime and I so hold.

​Coming to the contention of the Appellant that her fundamental right was breached or is likely to be breached by the Respondents on the ground that the 1st to 3rd Respondents threatened to deal with her if she doesn’t return the N50,000,000 paid to her by the 4th Respondent for the purchase of the said property. When one alleges that his/her fundamental right to dignity is breached or likely to be breached he must solidly put before the Court evidence to prove his allegation of such an infraction or likely infraction from the affidavit before the Court.

The evidential burden of proof in civil cases shifts or oscillates constantly as the scale of evidence preponderates. The primary onus of proof in a civil case such as the present one lies on the plaintiff who happens to be the now Appellant. See: KWAMINA KUMA V. KOFI KUMA (1934) WACA 178 AT p. 179; – KODILINYE V. MBANEFO ODU (1935) 2 WACA 336 AT P. 337; AYITEY COBBLAH V. TETTEY GBEKE (1947) 12 WACA 294 ATP, 295; ANACHUNA NWOKAFOR AND ORS. V. NWANKWO UDEGBE AND ORS. (1963) 1 ALL N.L.R. 107; NWANKWO UDEGBE AND ORS. V. ANACHUNA NWOKAFOR AND ORS. (P.C.) (1963) N.L. R.P, 417 AT P. 418; MOGAJI & ORS. V. ODOFIN & ANOR (1978) 4 SC 91; BELLO V. EWEKA (1981) 1 SC 101 AT 117 – 120; EKWEOZOR & ORS V. REG. TRUSTEES OF THE SAVIOUR’S APOSTOLIC CHURCH OF NIG. (2020) LPELR-49568 (SC).
​The law is settled that 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. It is also trite that in civil cases, the burden of first proving the 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. See: BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR-42475 (SC);Section 133 (1) and (2) of the Evidence Act 2011 provides: 133 (1); NDUUL v. WAYO & ORS (2018) LPELR-45151 (SC). The Appellant in her affidavit in support of motion on notice, as contained at pages 21 to 24 of the records of appeal, precisely paragraph 3 (xviii), through one Peter Abang, Esq., deposed as follows:
“The Respondents have threatened to deal with the Applicant if she does not produce the N50,000,000 and they have the capacity to do so by all means including arresting and detaining the Applicant on the foregoing petition of the 4th Respondent who is capable of achieving the arrest and detention of the Applicant on the same grounds by the instrumentality of other law enforcement agencies.”

On the other hand, the 1st to 3rd Respondents in reply to the alleged threat on the Appellant, in their counter affidavit as contained at pages 76 to 78 specifically paragraphs 3 (q), (r) and (t) deposed as follows:
q. that paragraph 3 (xvi) is admitted except that no member of the team, and to the best of my knowledge, no police officer serving at the Inspector General of police Monitoring Unit ever told her to refund the N50,000,000 to the 4th Respondent
r. that contrary to paragraph 3 (xvii), it was the Applicant who promised to come with her agent, who she claimed travelled oversea and who is also part of transaction in question, on the 26th June, 2013
t. that the 1st, 2nd and 3rd Respondents never threatened to deal with the Applicant.

It is a well settled position of the law that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Sections 131-133 of the Evidence Act, 2011; CBN & ANOR V. ARIBO (2017) LPELR-47932 (SC). The Appellant alleged that the 1st to 3rd Respondents threatened to deal with her if she does not produce the N50,000,000 paid to her by the 4th Respondent for the purchase of her property. The 1st to 3rd Respondents rebutted the said allegation as reproduced above in their counter affidavit, the burden of prove then shifted back to the Appellant who needed to present further evidence in support of her allegation of threat. The Appellant, having failed to present further evidence in support of her allegation of threat from the 1st to 3rd Respondent, failed to successfully establish that her constitutionally enshrined fundamental human right was breached or likely to be breached by the 1st to 3rd Respondents. I hold that the trial Court cannot be faulted in holding that the Appellant did not discharge the onus in proving that her fundamental rights to personal liberty was being, or likely to be, violated by the Respondents.

On the argument of the Appellant’s counsel that the cost of N10,000 awarded by the trial Court in favour of the Respondents severally is outrageous.

​The law is settled that award of costs is at the discretion of the Court which discretion must be exercised judicially and judiciously. Where the Court has properly exercised that discretion taking into consideration, the relevant facts and circumstances in determining what reasonable cost is in the particular case, the exercise of discretion will not be questioned. See: NBCI & ANOR. V. ALFIJIR (MINING) NIG. LTD. (1999) 14 NWLR (Pt. 638) 176 AT 197 (D – F), 203 (A – B); OKOYE V. NIGERIAN CONS & FURNITURE CO. LTD (1991) 6 NWLR (PT. 199) 501 AT 534 (F -H).

Costs follow event and a successful party should not be deprived of his costs unless for good reasons. See: SAEBY V. OLAOGUN (1999) 10 -12 SC 45 at 59.

The aim of the award of costs is to indemnify or compensate the successful party for expenses incurred in the course of the litigation. Costs are however not meant to punish the unsuccessful party. See: OYEDEJI V. AKINYELE (2001) FWLR (PT 77) 970 at 1001; ERO V. TINUBU (2012) LPELR (7869) 1; GABARI V. ILORI(2002) 14 NWLR (PT 786).

In the instant case, the Appellant have not shown that the Court’s discretion was wrongly exercised or why the N10,000 awarded is excessive See. EBULUE & ORS v. EZEBUO (2018) LPELR- 44685 (CA). I therefore fail to fault the discretion of the trial Court in the award of the cost of N10,000 (ten thousand naira) in favour of the Respondents severally, having in mind that several processes were filed and many appearances made in Court. I hold that the costs so awarded by the trial Court against the Appellant in favour of the Respondents are reasonable for which reason I cannot upturn the trial Court’s decision on costs.

Finally, I resolve this issue in favour of the 4th Respondent.
Having resolved the 2 issues in favour of the 4th Respondent and against the Appellant, I hold that the appeal is lacking in merit and the same is consequently dismissed. Accordingly, the decision of the High Court of Federal Capital Territory delivered on 14th February, 2014 in Suit No: FCT/HC/CV/M/3984/2013 is affirmed.

I award the cost of N20,000 against the Appellant and in favour of the 4th Respondent.

ABUBAKAR DATTI YAHAYA, J.C.A.: I had the privilege of reading in advance, the lead judgement of my learned brother, Onyemenam, JCA just delivered, to which I am in complete agreement. I too find no merit in the appeal and I dismiss it. I hereby affirm the judgment of the trial Court delivered on 14th February, 2021 in Suit No: FCT/HC/CV/M/3984/2013. I abide by the order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

OLAWALE OYEBODE For Appellant(s)

TOBECHUKWU NWEKE with him, MELVIN OPUTA and UZOAMAKA IKPEAZU For Respondent(s)