ONYEKA NDUBUSI v. LAGOS STATE GOVERNMENT & ANOR
(2019)LCN/13489(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2019
CA/L/06M/2012
RATIO
CONFLICT: DEFINITION
The Apex Court, per MUHAMMAD, JSC in SIMON EZECHUKWU & ANOR v I.O.C. ONWUKA (2016) LPELR 26055 (SC) aptly held that conflict denotes a situation where there is serious disagreement in opposing ideas or wishes which makes the preference of one to the other difficult. In legal parlance, therefore, conflict means the persistent violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible for the Court, in the face of such conflict, to prefer from the affidavits of both, the position of one to the other.Indeed, conflicts in affidavit occurs where there are facts in the two affidavits which are inconsistent and cannot be reconciled.
WHAT THE COURT IS TO DO WHEN THERE ARE CONFLICTS IN THE DEPOSITIONS IN AFFIDAVITS OF CONTESTING PARTIES
It is trite in law that where there are conflicts in the depositions in affidavits of contesting parties, the Court is not allowed to prefer one deposition to the order. See ARJAY LIMITED & ORS v AIRLINE MANAGEMENT LIMITED (2003) LPELR 555 (SC). A Court faced with such situation will be expected to invite the parties to call oral evidence in order to resolve the conflict. See ELIZABETH MABAMIJE v HANS WOLFGANG OTTO (2016) LPELR 26058 (SC). In MOMAH v VAB PETROLEUM INC. [2000] 4 NWLR (PT 654) 534; (2000) LPELR 1905 (SC), the Supreme Court, per ACHIKE, JSC held:
Our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court; it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve the resolution of the conflict.
See also NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR (1990) LPELR ? 2129 (SC) where the Apex Court emphasised that such a conflict in affidavit evidence may also be resolved by documentary evidence.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
A COURT CANNOT RAISE AN ISSUE SUO MOTU AND DECIDE ON IT UNILATERALLY WITHOUT HEARING FROM BOTH SIDES
See the decision of the Supreme Court in LEADERS OF COMPANY LIMITED & ANOR v MAJOR GENERAL MUSA BAMAIYI (2010) LPELR 1771 (SC) where it was held as follows:
It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides, however clear the issue may appear to be. Where a Court raised an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter particularly from the party that may be adversely affected as a result of the issue raised. Where a Court raised an issue without giving counsel the opportunity to address on it, the Court would clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversary system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised.
See also MOJEKWU v IWUCHUKWU (2004) LPELR ? 1903 (SC); ONIFADE v OLAYIWOLA & ORS (1990) LPELR 2680 (SC)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
ONYEKA NDUBUSI Appellant(s)
AND
1. LAGOS STATE GOVERNMENT
2. ATTORNEY-GENERAL OF LAGOS STATE Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): The present appeal emanates from the judgment of the High Court of Lagos State, coram OYEFESO, J., dismissing the Appellant?s suit. The Appellant?s case as aptly summed up by the learned trial judge at page 72 of the record of appeal is that in the early hours of 26th January, 2008, the Appellant was arrested by officers of the Lagos State Kick Against Indiscipline (KAI) Brigade for being on the street during the hours of 7.00am and 10.00am on an Environmental Sanitation Day in Lagos State. The Appellant alleged that Dr B.A.M Ajibade, SAN had called him at about 7:30am that morning, asking him to come and give him a haircut after the Environmental Sanitation exercise and he informed Dr Ajibade, SAN that he had been arrested by the KAI Brigade and taken before a mobile Court, charged, tried and sentenced to pay a N3, 000 (Three Thousand Naira) fine and consequently detained at the premises of the KAI Brigade.
?Meanwhile, Dr Ajibade, SAN later called the Appellant to know his whereabouts, and the Appellant informed him of his predicament, whereupon Dr
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Ajibade promised to assist him and informed him that he would drive to the office of the KAI Brigade at Alausa on his way, to give the Appellant the sum demanded as fine. The Appellant further alleged that when Dr Ajibade arrived at the office, he called the Appellant on phone and asked him to come out to collect the money. On this basis, the Appellant purportedly took permission from an officer of the KAI Brigade who was stationed at the entrance of the KAI Brigade officer, who granted him the permission to go outside the office. However, just as the Appellant was about to collect the money from Dr Ajibade, three officers of the KAI Brigade pounced on him demanding to know who released him. The Appellant?s explanations fell on deaf ears. In the presence of Dr Ajibade, the Appellant was kicked, slapped and punched by three KAI Brigade officers and even the attempt by Dr Ajibade to intervene was brushed aside.
Following the inhumane treatment meted out to the Appellant, the Appellant commenced an action at the lower Court for the enforcement of his fundamental right to dignity of his human person as guaranteed under the relevant statutory
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instruments. Upon conclusion of trial, the learned trial judge in his judgment delivered on 29th October, 2009 dismissed the Appellant?s action. Dissatisfied with the said judgment, the Appellant exercised his right of appeal vide a Notice of Appeal dated and filed on 15th August, 2014. The appeal is predicated upon three grounds.
In line with the practice in this Court, the Appellant filed a Brief of Argument dated 2nd October, 2014. Counsel for the Appellant, O.B. Oregbemhe, Esq and Cajetan Osisioma, Esq formulated three issues for the determination of the appeal, thus:
1. Whether in view of the irreconcilable conflicts in the Appellant?s affidavit and the Respondents? counter -affidavit, the learned trial Judge was right in the absence of documentary evidence, to have resolved the conflicting affidavit evidence without calling oral evidence?
2. Whether from the facts and circumstances of this case, the learned trial Judge was right when she dismissed the Appellant?s action and held that there was not enough evidence before the Court to enable it reach the conclusion that the Appellant?s right to the dignity of his
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human person was in any way breached?
3. Whether the learned trial Judge was right when she held that the Appellant should have exhibited a medical report showing the extent of the injuries suffered by the Appellant in order to preserve an infringement of his fundamental right to the dignity of his human person, even when the Respondents did not canvass for it in their counter-affidavit?
The Respondents did not file any brief of argument and were also not represented by counsel at the hearing of the appeal on 28th May, 2019. The appeal was thus argued and heard on the Appellant?s brief alone. I must quickly observe that even though the law expects a Respondent to file a brief in response to the Appellant?s brief, failure to file such brief is of no moment. This is because an Appellant must succeed on the strength of his case on appeal. Nevertheless, the Respondent will be deemed to have admitted the submissions made in the Appellant?s brief, in so far as they are borne by the records. See UNITY BANK PLC & ANOR v MR. EDWARD BOUARI (2008) LPELR ? 3411 (SC); SKYE BANK & ANOR v AKINPELU (2010) LPELR ? 3073 (SC). I
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shall proceed forthwith to consider the merit of this appeal on the basis of the arguments canvassed by the Appellant in his brief of argument.
Arguing the three issues together, Appellant?s counsel submit that it is wrong in the absence of documentary evidence, for a trial Court to make an order based on conflicting affidavit without first resolving the conflicts by calling oral evidence, relying on the decisions in U.B.A. PLC v UBOKULO [2010] 13 NWLR (PT 1210) 67 at 80, Para A and CONGRESS FOR PROGRESSIVE CHANGE & ORS v LADO & ORS [2011] 14 NWLR (PT 1266) 40 at 69, paras D to F. Counsel noted that though the Appellant had deposed to the fact that he was granted permission to go outside the office of the KAI Brigade by an officer for the purpose of collecting the N3,000.00 imposed on him as fine from Dr Ajibade, the Respondents however denied this fact, stating that no such permission was granted to the Appellant but that the Appellant was trying to escape from lawful custody and that it was the Appellant who beat up the three officers of the KAI Brigade, in retaliation of which the officers used a reasonable force to apprehend him.<br< p=””
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It is the submission of counsel that the contradictory depositions shows that the Respondents joined issues with the Appellant on the point as to whether permission was given to him to go outside the KAI Brigade office, and in this respect, the learned trial judge ought to have called for oral evidence to resolve the material conflicts as was held in ISHIAQ v EHITOR & ORS [2003] 10 NWLR (PT 828) 221 at 240 to 241, paras B ? G. Counsel also referred to Section 116 of the Evidence Act, 2011.
It is the further submission of counsel that the Respondents did not raise any new issue in their counter-affidavit, which required a rebuttal by filing a further affidavit. Also, that the learned judge erred when she held that the Appellant should have exhibited medical report showing the extent of the injuries he suffered in order to prove that his fundamental right to the dignity of his human person was infringed by the Respondent. Counsel contends that this issue was not raised by the parties, but raised suo motu by the trial judge, who did not afford parties the opportunity of addressing it on such matter, relying on the decision of NWEZE, JCA (now JSC)
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in AKPAN v SAM & ORS in Appeal No. CA/C/260/2011.
Submitting that Court decides issues but not speculate, counsel referred to the decision in OVERSEAS CONSTRUCTION COMPANY (NIG) LTD v CREEK ENTERPRISES (NIG) LTD & ANOR [1985] 3 NWLR (Pt. 13) 407 at 414; OLAWUYI v ADEYEMI [1990] 4 NWLR (PT 147) 746 at 782. Counsel said that it is not a requirement in an action for the enforcement of a person?s fundamental right, to exhibit a medical report showing the extent of the injuries suffered by a party; that once a party is able to show that his fundamental rights has been infringed, the burden is on the infringing body or person to establish that the infringement was justified by law, citing DIRECTOR, STATE SECURITY SERVICE & ANOR v AGBAKOBA [1999] 3 NWLR (PT 595) 314 at 371 to 373.
?It is also the submission of counsel that the Respondent?s deposition that the Appellant ?was overpowered by the Quarter guards and dragged back into the premises ? and the quarter guards at this point used only reasonable force? amounts to express admission of violation of the Appellant?s fundamental right to dignity of human
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person.
RESOLUTION
The judgment of the lower Court can be found at pages 71 to 74 of the record of appeal. At page 73 of the record, the learned trial judge held as follows:
There is no dispute that the applicant has been tried, found guilty and sentenced and that he was detained pending the payment of the fee imposed. The Applicant himself should have known that he should not have gone outside without paying the fine?
The Respondents have alleged that what was used on the Applicant was reasonable force to re-apprehend him to stop him from escaping since the Applicant had attacked them. As stated earlier there is no rebuttal of this material fact. To show that indeed the force used by the KAI officials was unreasonable and excessive, oppressive and arbitrary, a medical report showing the extent of the injuries suffered by the Applicant should have been annexed as an exhibit. This was not done here.
I have considered very carefully the application before me and cannot find that the Applicant has been able to show his fundamental rights were breached in any way. There is simply not enough before this Court to enable me
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reach that conclusion. The Applicant?s case therefore fails and is hereby dismissed.?
It is apparent that the decision of the learned trial judge that the Appellant has not been able to establish that his fundamental rights have been breached, is predicated on two grounds. First, is the purported failure of the Appellant to file any process in rebuttal of the deposition by the Respondents that reasonable force was used by the KAI Brigade officers after the Appellant attacked them while they attempted to re-apprehend him after his futile attempt to escape from lawful custody. The second ground is that the Appellant?s failure to present before the Court a medical report showing the extent of the injuries suffered by the Appellant to warrant the conclusion that excessive force was used by the KAI Brigade officers.
It is indisputable that the Appellant?s case at the lower Court is predicated on the inhumane way he was treated by the KAI officers. As a matter of fact, the Appellant copiously stated in support of his application that he was kicked, slapped and punched severally by three officers of the KAI Brigade, whom he confirmed
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their names to be Bankole, Yemi, and Kayode. On the other hand, the Respondents in their Counter Affidavit found at pages 55 to 57 of the record of appeal, deposed to by one Toyin Bankole, stated as follows:
?13. That no time was the (Appellant) granted permission to leave the premises of the special offences Court.
14. That under a guise the (Appellant) escaped from custody and was found outside the gate of the special offences Court.
15. That when I challenged the (Appellant) and asked for his receipt, he became belligerent and confrontational.
16. That I summoned the quarter guards to re-arrest the applicant when he resisted arrest and tried to escape.
17. That when the quarter guards came the (Appellant) put up a fight and began to kick, punch and slap the guards.
18. That the (Appellant) was over powered by the Quarter guards and dragged back into the premises, in order to ensure he did not evade payment of the fine.
19. That the quarter guards at this point used only reasonable force in order to restrain him.
20. That at no point in time was the (Appellant) slapped, killed and punched by me or any of the
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quarter guards?.?
The above deposition undoubtedly set the facts put forward by the Respondents on a collision course with the facts deposed to by the Appellant. For the avoidance of doubt, while the Respondents denied that the KAI Brigade officers slapped, killed and punched the Appellant, they nonetheless maintained that reasonable force was used to curtail the Appellant who resisted the attempt by the KAI Brigade officers to restrain him from evading lawful custody. Without therefore seeking guidance from anywhere else, it is obvious that there is conflict in the affidavit evidence presented before the lower Court.
The Apex Court, per MUHAMMAD, JSC in SIMON EZECHUKWU & ANOR v I.O.C. ONWUKA (2016) LPELR ? 26055 (SC) aptly held that conflict ?denotes a situation where there is serious disagreement in opposing ideas or wishes which makes the preference of one to the other difficult. In legal parlance, therefore, conflict means the persistent violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible for the Court, in the face of such conflict, to prefer from the affidavits
11
of both, the position of one to the other.Indeed, conflicts in affidavit occurs where there are facts in the two affidavits which are inconsistent and cannot be reconciled.
The facts elicited from the Appellant showed on its face that the Appellant was slapped, kicked and punched, whereas on the part of the Respondents, it was stated that reasonable force was used and that the Appellant was not slapped, kicked and punched by the KAI Brigade Officers. It is essential for the purpose of determining the question as to whether the Appellant?s right to dignity of the human person was breached, for the Court to satisfy itself that the Appellant was indeed ?slapped?, ?kicked? and ?punched? and/or treated in an inhumane way as alleged by the Appellant. The conclusion the Appellant has urged upon us, cannot rightly be reached in the light of the contradictory averments on the material fact. It is trite in law that where there are conflicts in the depositions in affidavits of contesting parties, the Court is not allowed to prefer one deposition to the order. See ARJAY LIMITED & ORS v AIRLINE MANAGEMENT LIMITED
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(2003) LPELR 555 (SC). A Court faced with such situation will be expected to invite the parties to call oral evidence in order to resolve the conflict. See ELIZABETH MABAMIJE v HANS WOLFGANG OTTO (2016) LPELR 26058 (SC). In MOMAH v VAB PETROLEUM INC. [2000] 4 NWLR (PT 654) 534; (2000) LPELR 1905 (SC), the Supreme Court, per ACHIKE, JSC held:
Our case law is replete with authorities that where a matter is being tried on affidavit evidence and Court is confronted with conflicting or contradictory evidence relied on by parties on a material issue before the Court; it is the law that the Court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve the resolution of the conflict.
See also NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR (1990) LPELR 2129 (SC) where the Apex Court emphasised that such a conflict in affidavit evidence may also be resolved by documentary evidence. It is my considered opinion, which I believe to be the right one that the learned trial judge ought to have, owing to the contradictory averments
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relied on by parties on the material issue as to whether the Appellant was brutalised by the KAI Brigade officers, called for oral evidence in order to resolve the obvious conflict. To me the learned trial judge erred when she flimsily waved away the Appellant?s case, without first resolving the conflict on the material issue.
A fortiori, it is abundantly clear from the case presented by the parties that no issue was joined on the purported failure by the Appellant to annexed as Exhibit a medical report showing the extent of the injuries suffered by the Appellant. It will therefore appear that the learned trial judge had raised the said issue suo motu and based her decision thereon, without first inviting parties, particularly the Appellant, to address the Court on the issue. This is an error, which will not be allowed to stand. It is a fundamental principle of our law that cases must be decided by the Court on issues properly placed before it; it is never the function of any Court, to raise suo motu issues not canvassed by parties before it which does not touch on the jurisdiction of the Court and to which Counsel were not invited to address it on.
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See the decision of the Supreme Court in LEADERS OF COMPANY LIMITED & ANOR v MAJOR GENERAL MUSA BAMAIYI (2010) LPELR ? 1771 (SC) where it was held as follows:
?It is trite law that a Court has no jurisdiction to raise an issue suo motu and unilaterally resolve it in its judgment without hearing both sides, however clear the issue may appear to be. Where a Court raised an issue suo motu, it is fair that the Court should hear counsel to the parties on the matter particularly from the party that may be adversely affected as a result of the issue raised. Where a Court raised an issue without giving counsel the opportunity to address on it, the Court would clearly be in breach of the principle of fair hearing. The rationale behind the principle that a Court should be wary in raising an issue suo motu is to maintain the role of the Court as an independent adjudicator in Nigerian adversary system of jurisprudence. There is a legal duty on the Court to give the parties or their legal representatives the opportunity to react or address it on the issue raised.
See also MOJEKWU v IWUCHUKWU (2004) LPELR ? 1903 (SC); ONIFADE v OLAYIWOLA & ORS
15
(1990) LPELR ? 2680 (SC). The irresistible conclusion, as it relates to the instant case, is that the failure of the learned trial judge, to call on parties to address it on the consequence of failure of the Appellant to present a medical report in support of his allegation of brutalisation by the KAI Brigade officers, is fatal and a breach of the Appellant?s right to fair hearing. Even on this ground alone, this appeal ought to be allowed.
Based on the foregoing, the relevant issues are resolved in favour of the Appellant. In the result, I find merit in the Appellant?s appeal and it is hereby allowed. The judgment of the High Court of Lagos State, coram OYEFESO, J. delivered on 29th October, 2009 is hereby set aside. The present suit as constituted in Suit No. ID/281M/2008 is hereby remitted to the Chief Judge of Lagos State for re-assignment to another judge of that Court, other than OYEFESO, J. No award as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment of my learned brother,
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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA wherein the appeal was upheld and remitted the case to the lower Court to be re-assigned by the Chief Judge of Lagos State to another judge in order that it could be heard expeditiously.
?I agree with the said judgment and do not wish to add anything to it as it had comprehensively dealt with the issues that call for determination of the appeal.
I also abide with the consequential orders made that both parties shall bear their respective costs.
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Appearances:
MATTHIAS DAWODU WITH HIM, BUSOLA BAYO OJOFor Appellant(s)
RESPONDENTS NOT REPRESENTED.For Respondent(s)
Appearances
MATTHIAS DAWODU WITH HIM, BUSOLA BAYO OJOFor Appellant
AND
RESPONDENTS NOT REPRESENTED.For Respondent
