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TRAIL PUBLICATION LTD & ANOR v. DIKKO & ANOR (2021)

TRAIL PUBLICATION LTD & ANOR v. DIKKO & ANOR

(2021)LCN/15670(CA)

In the Court of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, November 26, 2021

CA/G/176/2017

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. TRAIL PUBLICATION LTD 2. INUWA BWALA (Chairman Editor in Chief National Trail Newspaper) APPELANT(S)

And

1. YUSUF DIKKO 2. COMMISSIONER OF POLICE BORNO STATE RESPONDENT(S)

 

RATIO

THE DUTY OF THE COURT WHERE A PRELIMINARY OBJECTION IS RAISED

There are two aspects to consider in this appeal. This is the preliminary objection raised by the 1st Respondent and the merit of the appeal. These two aspects of the appeal cannot be taken together. They will be taken one after the other starting with the preliminary objection. This is because of the nature of a preliminary objection and the effect of same on a matter. As the name implies, it is a preliminary issue, that is to say it is an issue that must be settled before proceeding to the appeal proper. In law, once a preliminary objection is raised, the Court will have to pause and consider same before proceeding to the appeal if need be, depending on the outcome of the preliminary objection. This is the trite position of the law because a preliminary objection can terminate the appeal if it succeeds. See ENL Consortium Ltd v. D.B.N. Ltd. (2020)8 NWLR (Pt.1725)179 S.C. at 193; Okechukwu V. Obiano (2008)8 NWLR (PT.1726) 276 S.C. at 298. PER TOBI, J.C.A.

THE EFFECT OF A PRELIMINARY OBJECTION

The effect of a preliminary objection therefore is that no matter the right between the parties, particularly the Appellant, if the preliminary objection succeeds, the Court will no longer consider the appeal on the merit as that brings an abrupt end to the case. In Adejumo v. Olawaiye (2014)12 NWLR (Pt, 1421)252 the Supreme Court held thus:
“The purpose of a preliminary objection is to convince the Court that the hearing of the appeal comes to an end if found to be correct. If sustained it terminates the hearing of the appeal.”
See also General Mohammed Garba (rtd) vs Mustapha Sani Mohammed (2016) 6-7 S.C. 30. PER TOBI, J.C.A.

THE POSITION OF LAW ON PARTIES THAT NEED TO BE JOINED TO A SUIT

The parties that need to be joined to a suit must be necessary parties and not interested parties. There is a difference between necessary and interested parties. In A.G. Federation vs A.G. of Abia State (2001) LPELR-24862(SC), the apex Court had this to say on this:
“A distinction should be made and this counsel for the defendants have also pointed out, between a party who is merely interested in the outcome of the suit against who there can be no claim or relief sought. See Guda v. Kitta (1999)12 NWLR (Pt.629) 21; Aromire v. Awoyemi (1972)2 SC 1 and a necessary party, against who there can be a claim or relief, and who would be irreparably prejudiced if he is not joined in the action. That is one of the tests in determining whether to join a person as a party to an action. See Oduola v. Coker(1981) 5 SC 197. Whereas the former cannot be joined as a defendant, the latter who is a necessary party is entitled to be joined. Another test for the determination whether several defendants can be joined is that the claims and reliefs against the defendants should be the same, and that the defences to the claim of the plaintiff against the defendants can be tried together in the same suit. – See Okafor v. Nnaife (1973)3 SC 85.”
See Global West Vessel Specialist (Nig) Ltd vs NNLG Ltd & Anor (2017) LPELR-41987 (SC). PER TOBI, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT

I must at this stage warn myself that my duty is not to reappraise the evidence and make findings of my own different from the lower Court. This is not my duty in this appeal. I have no power in law to interfere with the finding of facts with the lower Court except the finding does not correspond with the evidence before the Court which in legal terms means that the finding is perverse. See Oguanuhu & Ors vs Chiegboka (2013) 2-3 S.C. (pt v) 27; Alioke vs Oye & Ors(2018) LPELR-45153 (SC). In Fasikun II & Ors vs Oluronke II & Ors (1999) LPELR-1248 (SC), the apex Court held:
“It cannot be disputed that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial Court which saw, heard and assessed the witnesses. Where, therefore, a trial Court, as in the present case clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not any business of the Court of Appeal to substitute its own views of the facts for those of the trial Court. See Akinloye and Another v. Eyiyola and others (1968) NMLR 92 at 95, Enang v. Adu (1981) 11-12 S.C. at 39, Woluchem v. Gudi (1981) 5 S.C. 291 at 320 etc. Once as in the present case, there is sufficient evidence on record from which the trial Court made its findings of fact, the appellate Court cannot interfere. See Akpagbue v. Ogu (1976) 6 S.C. 63, Odofin v. Ayoola (1984) 11 S.C. 72, Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) at 273 at 280 etc.”
PER TOBI, J.C.A.

THE POSITION OF LAW ON THE BURDEN OF PROOF IN ESTABLISHING A CASE ON THE VIOLATION OF THE FUNDAMENTAL RIGHT OF ANOTHER

I think this is the best time to take an excursion into the law on the burden of proof in establishing a case on the violation of the fundamental right of another. The party who alleges that his right has been violated must do more than merely averring that his right was violated. He must proceed further to show how his right was violated by the other party and what specific acts were done in the violation of his right. These are not facts that will be inferred but rather are to be expressly shown by the Applicant in the affidavit in a fundamental right proceeding. The Applicant has the duty in law to place before the Court material facts in support of his case. See Dangote vs Civil Service Commission (2001) 4 S.C. (pt II) 43; Fajimi vs. LASTMA &Ors (2014) LPELR- 22253(CA) at page 35-36. PER TOBI, J.C.A.

THE REQUIREMENT OF THE LAW TO PROVE FORGERY BEYOND REASONABLE DOUBT
To prove forgery beyond reasonable doubt, the law requires that the person alleging same must state who forged the document and the document from which it was forged must also be exhibited along with the forged document. See APC & Anor vs Godwin Obaseki & Ors (2021) LPELR-53538 (CA). The 1st Respondent had the duty in law to prove that Exhibit HUG1 was forged and not signed by him. This is more so that there is a presumption of regularity in favour of the document. See Audu v. INEC No. 2 (2010) 13 NWLR (Pt. 1212) 456 at 507; Engr. Yunusa Mustapha V. Alhaji Ibrahim Gaidam [2017] NGSC 17. In the circumstance, the duty to rebut the presumption of regularity is on the 1st Respondent. See Audu v. INEC No. 2 (2010) 13 NWLR (Pt. 1212) 456 at 507. PER TOBI, J.C.A.

 

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court of Nigeria, Maiduguri Judicial Division in Suit No. FHC/MG/CS/10/2015 delivered on 14/11/2016 by Hon. Justice M. T. Salihu. The facts leading to the Appeal are concisely as follows: The 1st Respondent who was the Applicant at the lower Court was arrested and detained by the 2nd Respondent based on the publication made by the 1st and 2nd Appellants. The 1st Respondent as applicant instituted an action for the enforcement of his fundamental human rights averring that his arrest and detention by the 2nd Respondent was orchestrated by the 1st and 2nd Appellants on the publication of a petition to the then Inspector General of Police which Appellants claim was authored by the 1st Respondent. The 1st Respondent denied authoring the petition stating that the publication was malicious. The Appellants on the other hand insisted that the 1st Respondent as Applicant in the lower Court signed the petition to the Inspector General of Police which was delivered to them for publication. The Appellants’ case is that they did nothing more than to publish the petition in furtherance of their duty as a publishing house. They therefore did not instigate the 2nd Respondent to arrest and detain the 1st Respondent. Both parties filed their processes at the lower Court. The lower Court in its judgment found on pages 254-277 specifically at pages 274-275 of the record held in favour of the 1st Respondent thus;
“In the instant case, Applicant has suffered ridicule, embarrassment and discomfort in the cell close to a day. The damages that he would be entitled by virtue of the status of the Applicant as at the time of the act should however be such that a reasonable and sensible man would consider to be not only sensible and reasonable but which is also fair in all the surrounding circumstances of the case. See OBERE Vs. BOARD OF MANAGEMENT EKU BAPTIST HOSPITAL (1978)6-7 SC 15, SHUAIBU Vs. MAIDUGURI (1967) NWLR 204. It is shown herein that the Plaintiff as at the time of that publication is a politician and the zonal chairman of PDP Southern Borno State as an indication plaintiff occupying a reasonable position in his party. As such the publication was done to ridicule and embarrass him (Applicant). On the whole I make a finding that Plaintiff has proved his case against the 1st, 2nd, & 4th Respondents to the Plaintiff.’’

The Appellants being unhappy with the decision of the lower Court, and in expressing their dissatisfaction filed this appeal of 8 grounds in the notice of appeal which is found on pages 185-189 of the record. The Appellants’ counsel in this appeal is H. M. Garga Esq. who settled the Appellants’ brief on 21/12/2020, deemed properly filed on 6/7/2021. The 1st Respondent’s counsel who settled the Respondent’s brief on 9/3/2021 deemed filed on 6/7/2021 is A. R. Abdulsalam Esq. The Appellants in their brief adopted on 20/9/21 formulated 3 issues for determination viz:
1. Whether the Appellants are liable for the alleged arrest and detention of the 1st Respondent by the 2nd Respondent without the knowledge and instigation of the Appellants.
2. Whether a Photocopy of an original is admissible in fundamental Human Rights applications.
3. Whether the 1st Respondent is the author of HUG1 (the petition).

In addressing the Court on the 1st issue, Appellants’ counsel submitted that for an applicant to succeed in an application for the enforcement of his fundamental rights, he must place all vital evidence regarding the breach of such rights before the Court to enable the burden shift to the Respondent citing Fajeminu V. C. B. (C. L.) (Nig) Ltd (2002) 10 NWLR (p 774) 95 at pp 110. Counsel submitted further that the onus lies on the 1st Respondent to show that the Appellants instigated his arrest and detention by the 2nd Respondent, this, the 1st Respondent was unable to establish in the affidavit evidence before the lower Court. The Appellants merely published the petition the 1st Respondent wrote and signed which was delivered to the Appellants for publication. There is nothing before the Court by the 1st Respondent to show that the Appellant did more than that and on the strength of that the lower Court was wrong in holding for the 1st Respondent as that singular act could not amount to violation of the fundamental right of the 1st Respondent, counsel submitted making reference to paragraphs 7, 8 and 9 of the 1st and 2nd Respondent’s counter affidavit. In the absence of any evidence that the Appellants instigated the police to arrest and detain the 1st Respondent, this Court should resolve this issue in favour of the Appellants, counsel submitted relying on Onah V. Okenwa (2010)7 NWLR PT. 1194 p.512. This he further fortified by submitting that, failure of the 1st Respondent to establish that the Appellants reported him to the police is fatal to his case as the decision to invite or arrest the 1st Respondent was the initiative of the 2nd Respondent.

On the second issue, counsel submitted that the Appellants’ in a bid to establish that the petition was written by the 1st Respondent attached a Photocopy of the petition. This document was annexed to the counter affidavit as Exhibit HUG 1. It is counsel’s submission that the Exhibit is admissible as evidence since it is attached to an affidavit. Counsel cited the case of B.A.T (Nig) Ltd v. Int’l Tobacco Co. Plc (2003)2 NWLR (pt 1338) 496 at 497; Shittabey V Attorney General of the Federation (1998) 10 NWLR (pt.570) 392. Counsel contended that the lower Court was wrong to have rejected the Photocopy of a document annexed to an affidavit as same was never challenged by the 1st Respondent. Counsel further submitted that the procedure for trial under the Fundamental Rights Enforcement Procedure Rules is different from trial under pleading. It is the firm submission of learned counsel that Exhibit HUG 1 a photocopy of the written petition of the 1st Respondent, is a document attached to an affidavit and as such it is admissible evidence. He urged the Court to resolve this issue in favour of the Appellants.

Appellants’ counsel on issue 3 relied on Sections 131,132 and 135(c) of the Evidence Act 2011 and Udemba V Morecab Fin. (Nig) Ltd(2003) 1 NWLR PT 800 page 96 in submitting that the said section placed responsibility on the 1st Respondent to show that his signature on Exhibit A1 was forged and the required standard of proof is beyond reasonable doubt. Counsel finally urged this Court to resolve this issue in favour of the Appellants as the 1st Respondent failed to establish the offence of forgery against the Appellants. Learned Counsel for the Appellants finally urged the Court to allow the appeal. 

​On receipt of the Appellants’ Brief, the 1st Respondent filed a notice of Preliminary Objection and also his Brief of Argument wherein he adopted the 3 issues for determination formulated by the Appellants. I see no reason to reproduce same hereunder. The 1st Respondent raised the preliminary objection by way of a notice filed on 9/3/21 which was argued in the 1st Respondent’s brief on pages 2-4 of the brief. The main thrust of the preliminary objection is that the Appellants unilaterally omitted to include the name of Dauda Mbaya in the appeal as a party who was 3rd Respondent in the lower Court. This omission which was done without leave of this Court makes the notice of appeal incompetent. 

In arguing the preliminary objection, counsel submitted that the omission of Dauda Mbaya who was the 3rd Respondent at the lower Court is fatal to the competence of the notice of appeal as he is a necessary party as shown in the case of Green vs Green (1987) 3 NWLR (pt 6) 480. Therefore, the 1st Respondent was wrong not to have joined the 3rd Respondent who denied authorship of the article based on his affidavit that his name was inserted into the publication. Learned Counsel finally submitted on the preliminary objection that the said Dauda Mbaya ought to have been joined as a party in this appeal and the removal of his name without leave of this Court or the lower Court robs this Court of jurisdiction to hear this appeal. He relied on Goodwill and Trust Ltd Vs. Witt Bush Ltd (2011) ALL FWLR (pt. 576) 542-54. He urges this Court to strike out the appeal and uphold the Preliminary objection.

On the merit of the appeal, in arguing issue 1, learned counsel submitted that the Appellants are liable for the infringement of the fundamental rights of the 1st Respondent since it was the publication they made that led to his arrest and detention of the 1st Respondent. Counsel referred to Paragraphs 3, 4, 7 and 10 of the affidavit in support and Exhibit A to buttress the fact that he was the 1st Respondent and that he was arrested and detained, counsel made reference to the counter affidavit of the 2nd Respondent wherein, the 2nd Respondent admitted that the 1st Respondent was invited to shed light on the petition. It is the firm submission of counsel that the publication was malicious particularly when Dauda Mbaya denied authorship of the said article but his name was inserted into same by the Appellants. The lower Court was also right he submitted, in finding the 2nd Respondent liable for picking up a petition from a newspaper to invoke its powers in arresting and detaining the 1st Respondent. He urged the Court to resolve this issue in favour of the 1st Respondent.

On issue no 2, learned counsel vehemently submitted that the lower Court was right to hold that a photocopy of a document annexed to an affidavit does not automatically become an exhibit if the whereabout of the original is not shown or disclosed to the Court because, once the original of a document is doubtful, a Court cannot rely on it. Counsel relied on Garba V Kwara Investment Co Ltd(2005) ALL FWLR (pt 385) P.488, 524-525. In the circumstance, it is counsel’s final submission on this issue that the lower Court was right to expunge Exhibit HUG 1.

In addressing the third issue relying on paragraphs 2,3,4,5 and (6), 6(a)-(e) of the further affidavit in support, counsel submitted that the 1st Respondent was not the author of Exhibit HUG1. These paragraphs unchallenged, the lower Court was right in acting on them, counsel firmly submitted citing Ajaokuta Steel Co Vs. Role (2011) ALL FWLR (pt 463) 1933. Learned Counsel submitted that the publication made by the Appellants is false because the said Dauda Mbaya who purportedly reported the story denied receiving any petition from the 1st Respondent when he was invited by the 2nd Respondent.

Counsel finally submitted that the learned trial judge was right to hold that the 1st Respondent was not the author of HUG1 and this is more so that the evidence of the 3rd Respondent Dauda Mbaya was not controverted by the Appellants. Learned counsel therefore urged this Court to discountenance the argument of the Appellants and dismiss the appeal.

​The Appellants filed a Reply Brief on 6/7/21 which principally is a response to the preliminary objection. The response is clear and straight to the point. The Appellants did not see the need to sue the 3rd Respondent at the lower Court that is Dauda Mbaya in the appeal since the outcome of the appeal in whichever way will not affect him. In this respect for the purpose of this appeal, he is not a necessary party. This is more so that he was exonerated in the lower Court from any liability. That apart, it is the further submission of counsel that a misjoinder and non-joinder of a party cannot defeat a case citing Okwu V. Umeh (2016) 4 NWLR (pt. 1501) 143, Azu V. UBN Plc (2014) 11 NWLR (Pt.1419) 580. The proper person to complain of his non-joinder is the said Dauda Mbaya and not the 1st Respondent. Counsel urged this Court to dismiss the objection for lacking in merit. 

The above is the submission of counsel based on the briefs of the parties. Both counsel have finished their work, as the rest of the work now is on the laps of this Court. While counsel will proceed to their next case and the parties go about their business, this Court will have to take up the responsibility of deciding this appeal one way or the other. 

There are two aspects to consider in this appeal. This is the preliminary objection raised by the 1st Respondent and the merit of the appeal. These two aspects of the appeal cannot be taken together. They will be taken one after the other starting with the preliminary objection. This is because of the nature of a preliminary objection and the effect of same on a matter. As the name implies, it is a preliminary issue, that is to say it is an issue that must be settled before proceeding to the appeal proper. In law, once a preliminary objection is raised, the Court will have to pause and consider same before proceeding to the appeal if need be, depending on the outcome of the preliminary objection. This is the trite position of the law because a preliminary objection can terminate the appeal if it succeeds. See ENL Consortium Ltd v. D.B.N. Ltd. (2020)8 NWLR (Pt.1725)179 S.C. at 193; Okechukwu V. Obiano (2008)8 NWLR (PT.1726) 276 S.C. at 298.

The effect of a preliminary objection therefore is that no matter the right between the parties, particularly the Appellant, if the preliminary objection succeeds, the Court will no longer consider the appeal on the merit as that brings an abrupt end to the case. In Adejumo v. Olawaiye (2014)12 NWLR (Pt, 1421)252 the Supreme Court held thus:
“The purpose of a preliminary objection is to convince the Court that the hearing of the appeal comes to an end if found to be correct. If sustained it terminates the hearing of the appeal.”
See also General Mohammed Garba (rtd) vs Mustapha Sani Mohammed (2016) 6-7 S.C. 30. 

Having stated the position of the law, I will now consider the preliminary objection raised by the 1st Respondent. The facts that culminated into this appeal I have stated earlier in this judgment. The parties in the lower Court were the 1st Respondent as Applicant in the suit seeking for the enforcement of the fundamental right of the 1st Respondent against the Appellants in this appeal who were 1st & 2nd Respondents in the lower Court. Mr. Dauda Mbaya who is not a party to this appeal was an employee of the 1st & 2nd Respondents. The 4th Respondent in the lower Court is the 2nd Respondent before this Court. The 1st Respondent as Applicant in the lower Court instituted the action against all the Respondents, that is the Appellants and the other two which were 3rd & 4th Respondents for the violation of his fundamental right. The 1st -3rd Respondents in the lower Court who made a publication alleged to have been authored by the Applicant in the lower Court was said to have by the publication, instigated the arrest and detention of the Applicant that is the 1st Respondent here. He was said to have been arrested and detained by the 4th Respondent that is the Police based on the publication of the 1st-3rd Respondents. The lower Court after going through the document before it which is the affidavit evidence and the documents attached therein as exhibits, delivered his judgment in favour of the Applicant against the 1st, 2nd & 4th Respondent while the 3rd Respondent was exonerated from any form of liability. The 1st & 2nd Respondents in the lower Court are the Appellants before this Court in this appeal. The Appellants filed this Appeal against the Applicant on whose side the judgment was given as 1st Respondent and the police who was 4th Respondent as 2nd Respondent in this appeal. The Appellant did not join Dauda Mbaya, 3rd Respondent in the lower Court to this appeal. That is to say he was not made a party in this appeal. This is what the 1st Respondent is making an issue in the preliminary objection. The 1st Respondent case in the preliminary objection as presented in the brief and argued by his counsel, A. R. Abdulsalam Esq. is that the Appellants’ Notice of Appeal is incompetent because the Appellants did not join Dauda Mbaya as a party in this appeal. The Appellants’ case on the other hand is that, there is no need to join him in this appeal as he cannot be termed a necessary party to this appeal particularly when there is no claim against him and more so when his presence will not affect the outcome of the appeal in any way. Both counsel tried summarily to address who a necessary party is using the locus classicus of Green vs Green (supra). It is my considered opinion that in deciding the preliminary objection, I need not go that far. However, for whatever it is worth, the law on a necessary party as settled in Green vs Green is that a necessary party to a case is a person without whom the case cannot be effectively and effectually determined and further that the outcome of the case will affect such a party. 

The parties that need to be joined to a suit must be necessary parties and not interested parties. There is a difference between necessary and interested parties. In A.G. Federation vs A.G. of Abia State (2001) LPELR-24862(SC), the apex Court had this to say on this:
“A distinction should be made and this counsel for the defendants have also pointed out, between a party who is merely interested in the outcome of the suit against who there can be no claim or relief sought. See Guda v. Kitta (1999)12 NWLR (Pt.629) 21; Aromire v. Awoyemi (1972)2 SC 1 and a necessary party, against who there can be a claim or relief, and who would be irreparably prejudiced if he is not joined in the action. That is one of the tests in determining whether to join a person as a party to an action. See Oduola v. Coker(1981) 5 SC 197. Whereas the former cannot be joined as a defendant, the latter who is a necessary party is entitled to be joined. Another test for the determination whether several defendants can be joined is that the claims and reliefs against the defendants should be the same, and that the defences to the claim of the plaintiff against the defendants can be tried together in the same suit. – See Okafor v. Nnaife (1973)3 SC 85.”
See Global West Vessel Specialist (Nig) Ltd vs NNLG Ltd & Anor (2017) LPELR-41987 (SC).

The question now is, whether using the test above, can Dauda Mbaya be said to be a necessary party in this appeal. In other words, can’t this appeal be determined effectively and effectually without the presence of the said Daudu Mbaya? I cannot agree with the 1st Respondent’s counsel that Dauda Mbaya is a necessary party to this appeal. He was a necessary party to the case at the lower Court but not for this appeal. The main thrust of this appeal is, whether the Appellants were properly found liable for violating the fundamental right of the 1st Respondent based on the publication they made in the National Trial Newspaper. The answer to this question can effectively be determined without joining the said Dauda Mbaya in this appeal. The next question is how will the outcome of this appeal affect him? I cannot see how, since he has been exonerated by the lower Court. There is no way the decision of this Court will affect him. The prayer sought in this appeal is that the decision of the lower Court be set aside. The purport of that is that, the judgment which is against the Appellants should be set aside. If this happens, how does it affect the said Dauda Mbaya. I cannot see how. In the circumstance, I do not agree with the submission of the 1st Respondent’s counsel that Dauda Mbaya is a necessary party to this appeal. He is not, to all intent and purpose. 

​Let me take this argument forward a little bit. I am not aware of any law that provides that a Notice of Appeal becomes incompetent because the Appellant in an appeal did not join or appeal against all the parties that were in the lower Court. I am also not aware that an Appellant must seek leave from the lower Court or this Court if he does not desire to file an appeal against one of the parties. This is a new learning for me, I am not sure I want to learn this new thing. In legal parlance, the issue here is that of non-joinder. Even if the 3rd Respondent in the lower Court was a necessary party in this appeal, which I firmly say he is not, the law on non-joinder or misjoinder of party was properly stated by the Appellants’ counsel A. Garba Esq. while adopting his reply brief. The position is, non-joinder or misjoinder cannot defeat the Notice of Appeal, the appeal or the judgment. The only caveat is that whatever the judgment of the Court cannot be enforced against such a party. See Chief Okwu & Anor v. Chief Umeh (SC.565/2014) [2016] NGSC 135; Okoye v. Nigerian Construction & Furniture Company Ltd (1991) 6 NWLR (Part 199) P. 501; APGA vs Dr Victor Ike Oye ELC (2018) 3405 (SC). 

​On the strength of the above legal position, I have no difficulty in holding that the preliminary objection fails and it is overruled and dismissed. 

Having disposed of the preliminary objection, the coast is now clear to look at the merit of the appeal. The Appellants’ counsel in the Appellants’ brief formulated 3 issues for determination from the 8 grounds of appeal. The 1st Respondent’s counsel adopted the 3 issues raised in the Appellants’ brief. The case belongs to the parties and since they are in agreement as to the issues for determination, I will adopt the issues for determination in this appeal as formulated by the Appellants and adopted by the 1st Respondent. There is no need to formulate my own issues as the formulated issues adequately address the grounds of appeal and the real issue in this appeal. My duty in this appeal is not to take on the role of a trial Court but rather to consider whether in the light of the evidence before the lower Court, the Court was right in the decision it took. See Onyibor Anekwe v. Mrs. Maria Nweke (2014)9 NWLR (Pt.1412) 393; Dada & Ors v. Bankole & Ors (2008)5 NWLR (Pt.1079) 26.
I will now address the merit of the appeal. 

​I will reproduce the issues for determination here for ease of reference:
1. Whether the Appellants are liable for the alleged arrest and detention of the 1st Respondent by the 2nd Respondent without the knowledge and instigation of the Appellants.
2. Whether a Photocopy of an original is admissible in fundamental Human Rights applications.
3. Whether the 1st Respondent is the author of HUG1 (the petition). 
I will now address issue 1. 

From the record of appeal, which contains the motion and the various affidavit in support and the counter affidavit with the judgment of the lower and the Exhibits attached to the affidavits, the main thrust of this appeal is whether the lower Court was right in holding the Appellants liable for the violation of the fundamental right of the 1st Respondent. This is the main thrust of this appeal but I will need to state certain salient facts again. What is clear and not in dispute from the affidavit before the lower Court which informed the decision of the lower Court is as follows: 
1. The Appellants published an article in their newspaper The National Trial Newspaper with the title ‘PDP Decries Police siege on Borno Youths’ wherein the author of a petition alleges that the police connived with a federal Director to lead thugs to invade the youth meeting of PDP Youths in Hawul Local Government. This publication is Exhibit 1A found on pages 21-22 of the record of appeal.
2. The petition which formed the bases of the publication found on pages 54-57 of the record marked Exhibit HUG1 was on the face of it signed by the 1st Respondent as Zonal Chairman of PDP with one Alhaji Musa Bako Hawul, Local Government Chairman of the Party. Someone signed for Alhaji Musa Bako. 
3. The 2nd Respondent based on the publication called the 1st Respondent for questioning which led to his arrest and detention however he was released on bail on the same day. 

The above facts informed the decision of the lower Court finding the Appellants and the 2nd Respondent liable for the violation of the fundamental right of the 1st Respondent. In this appeal the concern is not on the liability of the police but rather on the liability of the Appellants. The lower Court held the Appellants liable on the premise that they did not deny the malicious publication against the 1st Respondent. This is more so on the further ground that the 3rd Respondent in the lower Court Mr. Dauda Mbaya whose name appeared as the writer of the article denied writing same. The Appellants did not agree with the finding of the lower Court since according to their counsel, the 1st Respondent could not prove that the Appellants instigated his arrest. 

I must at this stage warn myself that my duty is not to reappraise the evidence and make findings of my own different from the lower Court. This is not my duty in this appeal. I have no power in law to interfere with the finding of facts with the lower Court except the finding does not correspond with the evidence before the Court which in legal terms means that the finding is perverse. See Oguanuhu & Ors vs Chiegboka (2013) 2-3 S.C. (pt v) 27; Alioke vs Oye & Ors(2018) LPELR-45153 (SC). In Fasikun II & Ors vs Oluronke II & Ors (1999) LPELR-1248 (SC), the apex Court held:
“It cannot be disputed that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial Court which saw, heard and assessed the witnesses. Where, therefore, a trial Court, as in the present case clearly evaluated the evidence of the parties and justifiably appraised the facts, it is not any business of the Court of Appeal to substitute its own views of the facts for those of the trial Court. See Akinloye and Another v. Eyiyola and others (1968) NMLR 92 at 95, Enang v. Adu (1981) 11-12 S.C. at 39, Woluchem v. Gudi (1981) 5 S.C. 291 at 320 etc. Once as in the present case, there is sufficient evidence on record from which the trial Court made its findings of fact, the appellate Court cannot interfere. See Akpagbue v. Ogu (1976) 6 S.C. 63, Odofin v. Ayoola (1984) 11 S.C. 72, Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) at 273 at 280 etc.”

​The finding and the conclusion reached by the lower Court at page 275 of the records is that the publication was done to ridicule and embarrass the 1st Respondent and therefore the Appellants are liable. To arrive at this finding and decision, the implication is that there is enough evidence before the lower Court that the publication is malicious and done with the intention to ridicule and embarrass the 1st Respondent. I think this is the best time to take an excursion into the law on the burden of proof in establishing a case on the violation of the fundamental right of another. The party who alleges that his right has been violated must do more than merely averring that his right was violated. He must proceed further to show how his right was violated by the other party and what specific acts were done in the violation of his right. These are not facts that will be inferred but rather are to be expressly shown by the Applicant in the affidavit in a fundamental right proceeding. The Applicant has the duty in law to place before the Court material facts in support of his case. See Dangote vs Civil Service Commission (2001) 4 S.C. (pt II) 43; Fajimi vs. LASTMA &Ors (2014) LPELR- 22253(CA) at page 35-36.

The 1st Respondent has proved as shown in his affidavit that he was arrested and detained by the 2nd Respondent. The 2nd Respondent did not deny this. The question however is, what is the concern of the Appellants in the arrest and detention of the 1st Respondent by the 2nd Respondent when they are not the arresting or detaining authority. The Appellants have no control or power to dictate to the 2nd Respondent who and how to carry out his work. To therefore hold the Appellants liable for the violation of the fundamental right of the 1st Respondent based on the arrest by the 2nd Respondent, the 1st Respondent must need to show the specific role played by the Appellants to instigate his arrest. Once a party that is alleged to have violated the fundamental right of another is based on arrest and detention, if any other person apart from the arresting authority is to be held liable for the arrest and detention, there must be clear evidence that the other party instigated the arrest, that is to say, it played active role in ensuring the Applicant is arrested. Just as a citizen cannot be held responsible for reporting a crime which leads to the police arresting a person, in the same vein, a newspaper house cannot be held liable in reporting a story that was given to it to publish if the other party cannot prove bad faith. This Court drove this home in a plethora of cases. In Orkater vs. Ekpo & Ors (2014) LPELR-23525 (CA) this Court per Otisi, JCA at page 30 held:
“It must be emphasized that the Appellant was certainly acting within his rights in taking his complaint to the police. In Fajemirokun vs. Commercial Bank Nig. Ltd LPELR [2009] SC.336/2002, the Supreme Court, per Ogebe, JSC, said: “Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.” In concurring with the lead Judgment, A. M. Mukthar, JSC (now CJN) said: “…I have said earlier on the respondents were exercising their legal rights to seek the police intervention. Indeed no one can deprive any citizen of that right more so when there was good ground for the action taken by the police, as it was not as a result of mere suspicion…”See also: Owomero vs. Flour Mills (Nig.) Ltd (1995) 9 NWLR (Pt.421) 622 at 629, Ezeadukwa vs. Maduka (1997) 8 NWLR (Pt.518) 635 at 667. It is for the police to investigate a complaint laid before them, and upon investigation, to take appropriate action.”

The Respondent has failed to prove the involvement of the Appellants in his arrest. In the case of publication, the Applicant must show that the publication is malicious. To determine whether the finding of the lower Court is correct, I will look at the affidavit of the 1st Respondent, the Applicant in the lower Court. The evidence is in the affidavit in support found on pages 9-12 and the further affidavit found on pages 34-41 of the record. The paragraphs of the affidavit in support that touches on the Appellants are paragraphs 2,3,6,9 and 11. These paragraphs only show that the Appellants made a publication in their newspaper based on which he was arrested by the 2nd Respondent. The only allegation against the Appellants was that they published an article upon which the 2nd Respondent arrested the 1st Respondent. From the affidavit in support, the only action of the Appellants for which they are held liable is the publication they made in their newspaper, an article based on a letter of complaint which was allegedly signed by 1st Respondent. This averment did not state that the Appellants did anything more than just the publication. I have looked at the further affidavit and I cannot see any averment therein against the Appellant different from the averment in the affidavit in support. The only ‘offence’ of the Appellants is the publication of the article which is Exhibit 1A. Is this enough to hold that the Appellants are liable for the arrest and the detention of the 1st Respondent by the 2nd Respondent? I do not think so, indeed it cannot be so, as the Appellants must have taken further steps that actively lead to or amount to instigating or motivating the 2nd Respondent to arrest the 1st Respondent. In the absence of any such evidence, which I cannot see, I can make bold to say that the finding of the lower Court does not agree with the evidence and therefore I can interfere with it. I cannot seem to see any evidence of malicious publication. The Appellants did not originate the allegation against the police or indeed the publication. The publication was based on a petition, which is Exhibit HUG 1. This is a letter of complaint written by PDP addressed to the Inspector General of Police alleging connivance of the police with some persons to disrupt the meeting of the youth of PDP in Hawul Local Government. The Appellants alleged that the letter was signed by the 1st Respondent, this the 1st Respondent denied. I will be addressing the issue of the denial when I will be addressing issue 3. For now, suffice to say that I cannot see any active role played by the Appellants which instigated the arrest of the 1st Respondent. To that extent, I cannot agree with the lower Court that the Appellants are liable for the violation of the fundamental right of the 1st Respondent merely because they published a complaint that was brought to their office. There is no evidence that the Appellants lacked due diligence in doing that. I also cannot see malicious publication proven. The Appellants were not the authors of the Petition. The petition got to them one way or the other and they published same and the police on seeing the publication sent for the 1st Respondent for questioning and without reference to the Appellants, the police arrested and detained the 1st Respondent. The decision to arrest was made by the 2nd Respondent without any input from the Appellants. The police arrested and detained the 1st Respondent upon seeing the publication. There is no sufficient evidence that the Appellants went on out of their way to obtain or indeed forged Exhibit HUG1. All the Appellants did was to make Exhibit HUG1 a story. That is all. The police which is not on the payroll of the Appellants or subject to their control, took the decision to arrest and detain the 1st Respondent on its own without any influence from the Appellant. The police can answer for itself and indeed the Appellants should not be made to pay for the decision of the police which was exclusively within their powers to make. In this proposition of the law I find the Supreme Court case of Isheno vs Julius Berger (Nig) Ltd Plc (2008) 2-3 S.C. (pt II) instructive. The Court held as follows: 
“The main question raised in this appeal is whether, from the facts established in this case, the respondent could be held liable for acts of the police on the report made to the police in respect of a crime as was in this case. The position of the law is that an action for false imprisonment will lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect. See Bank of West Africa v. Odiatu (1956) L.L.R. 48; and Mandilas & Karaberis v. Apena (1968) All N.L.R. 390. Similarly, where, on a report made by an appellant to the police about the theft of his goods, the appellant was asked whether he suspected anyone. He replied that he suspected the respondent who was consequently arrested and detained by the police for inquiry, such expression of opinion is said to be no more than putting the police on a trail upon which he can work instead of leaving him in the wilderness. Giving such information to the police cannot therefore form the basis for any action for false imprisonment or false prosecution by the police since it would be the duty of the police, after receiving such information, to make investigations themselves which may or may not lead to an arrest or to any action they take on the information given to them. Giving the police such information, therefore, cannot be said to have put the law in motion against the respondent: See: Esther Adefunmilayo v. Omolara Oduntan (1958) W.R.N.L.R 31; and Gbajor v. Ogunburegui (1961) All NLR 853. Thus, in the instant case, the arrest, detention and subsequent prosecution of the appellant by the police for the theft of the respondent’s stolen tipper lorries, could not form the basis for an action for damages for false imprisonment or malicious prosecution or defamation of character against the respondent as claimed by the appellant even if the appellant’s name was given to the police as the person suspected.”

I cannot see any reason not to resolve this issue in favour of the Appellants. For completeness, I resolve this issue in favour of the Appellants and against the 1st Respondent. 

Now to issue 2, the lower Court held in page 271 of the record referring to the case of Jacob vs A. G. Akwa Ibom State (2002) 7 NWLR (pt 765) 18 in holding that a document attached to an affidavit does not automatically become an exhibit. The Appellants’ counsel submitted correctly in my view that documents attached to an affidavit is part of the evidence that a Court will look at in coming to a decision before it. In a case fought on affidavit evidence, the documents attached therein cannot be tendered separately because no oral evidence is taken from the parties. The affidavit is the evidence before the Court and therefore the documents attached therein are marked as exhibits. In Ezeanochie v. Igwe (2020) 7 NWLR (1724) 430 at 452, the apex Court held thus: ‘‘It is trite that documents attached to an affidavit as exhibit form as much part of the affidavit as if they have been actually annexed to and filed with-south Eastern State Newspaper Corp & Anor v. Anwara (1975) LPELR-3107(SC). Such exhibits are not attached to affidavits just for the fun of it, they come in handy. More so, when it is borne in mind that document, once written, is permanent and in most cases unlike human beings, does not lie. British American Tobacco Nig. Ltd vs. International Tobacco Co Plc (2013) 2 NWLR (Pt. 1339) 493.” 
In such a situation, the document marked as exhibit will be so treated. It is only when the document attached to the affidavit is not marked as exhibit that the Court will discountenance it but if it is marked as exhibit, the Court will consider same however the substance that is the weight to attach to the document will be a different issue. See Yahaya & Anor vs Dankwanbo & Ors (2016) 7 NWLR (pt 1511) 284; Maku vs Al-Makura (2016) LPELR-48123 (SC). The law is settled that documents attached to affidavit once marked forms part of the affidavit and as such it is considered as evidence since the affidavit is evidence so is the documents attached therein. The law does not permit any objection raised to the admissibility of the document attached to an affidavit. See Ezechukwu & Anor vs I.O.C. Onwuka (2016) LPELR-26055 (SC). Fundamental right proceedings are fought on affidavit evidence, therefore the documents attached to the affidavit is part of the evidence before the Court which the Court will consider. 

It is also settled law that a Court has powers to consider all documents in its records if it is necessary to arrive at a just decision. See Sharing Cross E.S. Ltd vs U.A. Ent. Ltd (2020) 10 NWLR (pt 1733) 405. I resolve this issue in favour of the Appellants. 

​The Appellants’ case in the counter affidavit is not a case of denial. I will now address issue 3. The Appellants admitted making the publication but their case is that the complaint which formed the bases of the publication was brought to their office which they received and in carrying out their responsibility to the public, they published same. What is clear and certain is that the Appellants were not the authors of the petition which formed the bases of the publication. The petition, Exhibit HUG1 was brought to their office and was officially received. The letter was written on 22/4/2015 but was delivered and received on 24/4/2015 at the Abuja office of the 1st Appellant. The publication based on that letter was made on their publication of 27/4/2015-3/5/2015. The letter had the signature of the 1st Respondent. The 1st Respondent denies authoring the petition, Exhibit HUG1. The Applicant alleges that his signature on Exhibit HUG1 was forged meaning that the 1st Respondent did not make the said document. The lower Court at page 271 of the record which contains the judgment seems to have found that the signature of the 1st Respondent in Exhibit HUG1 is not that of the 1st Respondent. I do not think I want to go into that route as it is not necessary and will not make any difference since there is no evidence that the Appellants forged the petition or knew about whatever forgery of the signature. For the purpose of this case, what is important is that the Appellants did not instigate the petition or the 2nd Respondent to arrest the 1st Respondent. The Appellants in my opinion are as innocent as the 3rd Respondent in the lower Court since they did not author the document. 

The 1st Respondent denies making Exhibit HUG1. The Appellants are not insisting that he made the said document. All that the Appellants’ are saying is that, the publication they made was based on a petition that PDP gave to them for the purpose of publication. Whether it was actually signed by the 1st Respondent or not, the point for which the Appellants should have been exonerated is that there is no evidence to show that the publication was originated maliciously by the Appellants. In law, once there is an allegation of forgery, the onus is on the person asserting same to prove beyond reasonable doubt the allegation since this is a criminal allegation even if it is in a civil trial. See ACN vs Sule Lamido & Ors(2012) LPELR-7825 (Sc); The 1st Respondent in my opinion was not able to prove this. To prove forgery beyond reasonable doubt, the law requires that the person alleging same must state who forged the document and the document from which it was forged must also be exhibited along with the forged document. See APC & Anor vs Godwin Obaseki & Ors (2021) LPELR-53538 (CA). The 1st Respondent had the duty in law to prove that Exhibit HUG1 was forged and not signed by him. This is more so that there is a presumption of regularity in favour of the document. See Audu v. INEC No. 2 (2010) 13 NWLR (Pt. 1212) 456 at 507; Engr. Yunusa Mustapha V. Alhaji Ibrahim Gaidam [2017] NGSC 17. In the circumstance, the duty to rebut the presumption of regularity is on the 1st Respondent. See Audu v. INEC No. 2 (2010) 13 NWLR (Pt. 1212) 456 at 507. The 1st Respondent is unable to rebut that presumption. This issue I also resolve in favour of the Appellants. 

Having resolved the 3 issues in favour of the Appellants, the obvious and final decision of this Court on this appeal is clear. The Appellants sought a single relief which is for an order setting aside the judgment of the lower Court. This relief is not difficult to grant as the 3 issues formulated in the determination of this appeal are resolved in favour of the Appellants. I cannot see my way clear not to allow this appeal. This appeal is therefore allowed and the judgment of Hon. Justice M. T. Salihu of the Federal High Court in Suit No: FHC/MG/CS/10/2015 – Yusuf Dikko vs Trail Publication Ltd & Ors is hereby set aside. 
I award N100,000 cost in favour of the Appellants against the 1st Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I was afforded a preview of the draft of the lead Judgment of my learned brother, Ebiowei Tobis J.C.A., just delivered. I agree with his reasoning and conclusions and will simply add a few words in agreement.

The law is that the tort of unlawful or false arrest, detention and/or imprisonment ensues where it is established that a person instigated the Police to so act, not necessarily out of malice, but actuated by improper motive; or where the wrongful act was intentionally done by the Police informant or the instigator of the arrest and detention. Even in the case of malicious prosecution, for liability to lie, the defendant must have done more than merely reporting the matter to the Police. He must have spearheaded the prosecution where there was no basis for such. See
1. Ogbonna V Ogbonna (2014) LPELR 22308 (CA) 55;
2. Kazuare V Kafinta (2014) LPELR-22901(CA) 22-23;
3. Ishola V Ishola (2014) LPELR-23082(CA) 53;
4. Ojo v Lasisi (2003) FWLR (Pt. 156) 896.

The Courts have held that an arrest properly made cannot constitute a breach of fundamental rights. A citizen who is arrested by the Police in the legitimate exercise of their duty and on grounds of reasonable suspicion of having committed an offence, cannot sue the police in Court for breach of his fundamental rights See Emonena V IGP (2016) LPELR-41489(CA) 13. 

The facts of the case leading to this Appeal disclose that, upon a petition purportedly written by the 1st Respondent which was delivered to the Appellants (Trial Newspaper and its Chairman), the petition was published by the Appellant in the Newspaper. Based on the contents of the publication, the 1st Respondent was arrested and detained by the 2nd Respondent, but was subsequently released on the same day. 

Aggrieved by his arrest and detention, the 1st Respondent approached the lower Court vide the Fundamental Rights Enforcement proceedings aside from his complaint of wrongful/unlawful arrest and detention, the 1st Respondent denied being the author of the petition published by the Appellants which however bore his name. Instead, he contended that both the petition and his name thereon were fake and forged. At the close of trial, the lower Court found that the 1st Respondent had proved his claim against the Appellants, that they orchestrated the arrest and detention of the 1st Respondent based on the publication of the petition which he (1st Respondent) denied authoring. 

However, from the evidence placed before the lower Court, the Appellants were not the authors of the petition which formed the basis of the publication. The petition was merely published in the Newspaper in their line of duty as a publishing house. Thus, the petition which, on the face of it appeared to have been authored and signed by the 1st Respondent, was published. It was based on this publication, that the Police who, being offended by the contents of the petition, on their own impetus, arrested and detained the 1st Respondent 

​From these facts, it is difficult to see why the lower Court would find the Appellants culpable of breaching the fundamental rights of the 1st Respondent when there was no evidence placed before it that they instigated his arrest and detention in any way. The fact that the 1st Respondent denied authoring the petition did not detract from the fact that they could not be held responsible for the acts of the Police in carrying out their constitutional duties of investigation, arrest, detention and prosecution. To make matters worse, the allegation of the 1st Respondent that his signature was forged on the petition required same to have been proved beyond reasonable doubt, being an allegation of a criminal nature. 

I therefore agree with the lead Judgment that this Appeal is pregnant with merit, the Respondent having not proved at the lower Court that the Appellants breached his fundamental rights in any way by merely publishing a petition which was apparently authored by him. They cannot bear responsibility for the subsequent acts of the Police in arresting and detaining him based on the execution of their constitutional role of investigation, arrest etc. 

It is for these reasons and the detailed reasons in the lead Judgment that I also allow the Appeal. I abide by the consequential orders in the lead Judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother EBIOWEI TOBI J.C.A. I am in full agreement with the reasoning and conclusion therein. The facts of this appeal have been clearly set out in the leading judgment.

The 1st Respondent was the applicant at the lower Court. He was arrested and detained by the Police based on the information published by the 1st and 2nd appellants. The 1st respondent as applicant filed an action for enforcement of his fundamental rights on the ground that his arrest and detention was caused by the malicious publication of the 1st and 2nd respondent at the lower Court.

There is a difference between mere giving of information to the police which caused the police, of its own initiative to arrest a suspect and a pointed malicious specific allegation or accusation against an individual to the police leading to the arrest and detention of a suspect.
In OKAFOR VS ABUMOFUANI (2016) 12 NWLR (PT 1525) P 117, SANUSI JSC explained this point thus:
“It is trite law that where a report is made against a person specifically mentioned as a suspect or accused person, and the report is later found to be false, malicious, unmotivated and unfounded, the person so reported, arrested and detained is entitled to damages to be paid to him by the person who made the false report since he is the person who set the law in motion against the victim falsely”.
Earlier in ISHENO VS JULIUS BERGER NIG PLC (2008) 6 NWLR (PART 1084) 582, AKINTAN JSC drew the above distinction as follows:
“The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect”. See BANK OF WEST AFRICA VS ODIATU (1956) LLR 48; and MANDILAS & KARABERIS VS APENA (1969) ALL NLR 390. See also IKOKU VS OLI (1962) LPELR – 25166 (SC), BAIRAMIAN JSC in the old case of IKOKU VS OLI (SUPRA) beautifully explained this point thus:
Relying on an old case of PANDIT GAYA PARSHAD TEWARI VS SARDAR BHAGAT SINGH & ANOR (1908) 24TLR 884 which has the following head note which his lordship adopted thus: 
“If a complainant does not go beyond giving what he believes to be correct information to the police and the police without further interference on his part (except giving such honest assistance as the police may required) think fit to prosecute he is not responsible in an action for malicious prosecution but if the charge is false to the knowledge of the complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial he cannot escape liability because the prosecution has not technically been conducted by him”.
In the instant appeal, active malicious involvement of the appellant in the arrest and detention of the 1st respondent were not shown in the affidavit evidence before the lower Court.

​It is for the above reasons and the further reasons so ably set out by my learned brother in the leading judgment that I also allow this appeal and set aside the judgment of the lower Court in SUIT NO FHC/MG/CS/10/2015 delivered on 14/11/2016.
I abide by the order as to costs in the leading judgment.

Appearances:

H. M. Garga Esq. with M. A. Abuhunra For Appellant(s)

A. R. Abdulsalam Esq. with A. Z. Ibrahim For Respondent(s)