UKWENYA & ORS v. NDUKA & ORS
(2022)LCN/16576(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, May 23, 2022
CA/A/79/2019
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. PAUL UKWENYA 2. PARGEL NIG. LTD 3. EDWIN OBIORA ISHIWU APPELANT(S)
And
1. CHIGOZIE CHRISTIAN NDUKA 2. DJANGO ENERGY INTERNATIONAL SERVICES LTD 3. INSPECTOR GENERAL OF POLICE 4. INSP. MUSA MUDI RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES NOT FORMULATED FROM A GROUND OF APPEAL IS DEEMED ABANDONED
The law is that where no issue is formulated from a Ground of Appeal, the Ground is deemed abandoned and the resultant effect is that the said Ground is struck out. See FMC IDO EKITI & ORS V. KOLAWOLE (2011) LPELR-4149 (CA).
In the case of LALAPU V. COP (2019) LPELR 47814, the Supreme Court held as follows:
“The 1st and 2nd Grounds of Appeal are abandoned, since no issues have been formulated from them. They are hereby struck out in line with the decision of this Court in ADELEKAN V. ECU-LINE NV (2006) ALL FWLR (PT 321) 1213, where Onnoghen JSC (as he then was) held: “it is settled law that where no issue is formulated from any Ground of Appeal, the said ground is deemed abandoned, the same principle of law applies to a situation where it is found that issues formulated by an Appellant do not relate to the Grounds of Appeal. The said grounds must be deemed abandoned since no issues have been distilled from them and are therefore liable to be struck out.” The 1st and 2nd Grounds of Appeal are accordingly struck out.”
See also ITOK V. UDOYO (2020) LPELR-52524 (SC), PDP V. INEC & ORS (2014)17 NWLR (PT. 1437) 525, NGILARI V. MOTHERCAT LTD (1999) LPELR-1988 (SC) In the instant appeal, grounds 2 and 3 of the Notice of Appeal of the Appellants and no issue culled from the two grounds, they are deemed abandoned, and hereby struck out. PER SENCHI, J.C.A.
THE POSITION OF LAW WHERE A DECISION OF A COURT IS PREDICATED ON AFFIDAVITS FILED BY PARTIES
This general or omnibus ground is related to issue one. This is because it is trite law that where the decision of a Court is predicated on Affidavits filed by parties, then an omnibus or general Ground of Appeal can be properly couched to challenge the evaluation of facts in the Affidavit.
See ODUOLA & ORS V. COKER (1981)5 SC 197, NEIMOGHA & ANOR V. ORUBAYI (2015) LPELR-24526, ADEBAYO & ORS V. PDP & ORS (2012) LPELR-8430 and ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA V. THE GOVERNOR OF BAYELSA STATE & ORS (2019) LPELR-47261 (CA). PER SENCHI, J.C.A.
THE BURDEN OF PROOF IN CIVIL CASES
The law is trite that he who alleges or asserts must prove. A party who prays a Court of law to grant one order or another must furnish cogent evidence in support of same, as the decision of the Court must be based on evidence and not on speculation or baseless allegations. Thus, a party who alleges the existence of a particular set of facts and instances must prove the existence thereof via evidence to the standard set by law. See SECTIONS 131-134 of the EVIDENCE ACT, 2011 (AS AMENDED). See also RAPID RICH RESOURCES LTD V. POLARIS BANK (2019) LPELR-50413 (CA). PER SENCHI, J.C.A.
WHETHER OR FACTS THAT HAVE BEEN ADMITTED NEEDS TO BE PROOF
The presumption of the law is that those facts have been admitted or that the Appellants have no defence to the facts deposed therein. See IJEZIE V. IJEZIE (2014) LPELR-23773 (CA), HONDA PLACE LTD V. GLOBE MOTORS HOLDINGS (NIG) LTD (2005)11 MJSC 1 AT 15 where KATSINA ALU JSC, later CJN held:
“No Counter-Affidavit was filed by the Respondent. With that, the facts deposed to in support of the application were neither challenged nor disputed by the Respondent. What this means is this: those facts remain unchallenged and uncontroverted. The inevitable consequence is that those facts deposed to in the Affidavit filed by the Applicant must be deemed to have been admitted by the Respondent and also be taken as true by the Court, unless they are obviously false to the knowledge of the Court. See ALAGBE V. ABIMBOLA (1978) 2 SC 39 AT 406, Nwosu v. Imo State Environmental Agency (1990)2 NWLR (pt. 135) 668 at 7721A and 735B.”PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/1871/2018 delivered on the 31st day of October, 2018 by Y. Halilu J.
The 1st and 2nd Respondents, as Applicants, approached the lower Court on 23/5/2018 for the enforcement of their Fundamental Human Rights via a Motion seeking the following Reliefs:
(i) A Declaration that the general duties of the Nigeria Police Force under Section 4 of the Police Act Cap. P19 LFN, 2004 which shall be employed for the prevention and detection of crime, do not extend to purely contractual relationship/transaction which is outside the criminal compass of the Nigeria Police Force.
(ii) A Declaration that the unlawful arrest, harassment, humiliation, torture and detention of the 1st Applicant from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st to 3rd Respondent without any lawful and justifiable cause are unconstitutional, illegal wrongful, degrading, oppressive, null and void, and thus constitute infringements of the 1st Applicant’s fundamental right to dignity of human person, right to personal liberty and right to freedom of movement as enshrined under Sections 34(1), 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Article 4, 5, 6 and 12(1) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act, 1983.
(iii) A Declaration that the lawful and illegal arrest and detention of the 1st Applicant from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st to 3rd Respondents over a matter which is purely contractual unduly and negatively affected the business operation of the 2nd Applicant by denying the 2nd Applicant the services of the 1st Applicant and thus caused the 2nd Applicant serious losses of business profit.
(iv) An Order mandating the Respondents, jointly and severally, to pay the of N500,000,000.00 (Five Hundred Million Naira) only being general and exemplary damages and as compensation for the infringement of the 1st Applicant’s fundamental rights to dignity of human person, personal liberty and freedom of movement; and also for the losses of business profit of the 2nd Applicant.
(v) An Order of Court mandating the Respondents to tender apology in writing in two national dailies to the Applicants within 7 days of making the order for the unlawful breach of the 1st Applicant’s constitutionally guaranteed fundamental right which by extension gave a bad image of the 2nd Applicant’s business.
(vi) An Order of perpetual injunction restraining the Respondents whether by themselves, their servants, staff, officers, men and agents wherever and whenever from further unlawfully arresting, detaining, or in any way infringing on the 1st Applicant’s constitutional rights as guaranteed by law.
(vii) And for such further order and other orders as this Honourable Court may deem fit to make in the circumstance.
The grounds upon which the Applicants brought their application are as follows:
(i) The duties of the Nigeria Police Force under Section 4 of the Police Act Cap. P19 LFN, 2004 do not extend to matters of purely contractual relationship/transaction.
(ii) A mere Petition against the Applicants irrespective of its seriousness cannot operate to curtail the fundamental rights of the 1st Applicant nor can it operate to justify the unlawful arrest, detention and incarceration, torture, humiliation and human treatment meted out to the 1st Applicant.
(iii) An arrest before/pending investigation is unconstitutional as the position of the law is that while the Police has the power to arrest and detain a suspect over an allegation of crime, it must first investigate such allegation and establish a crime, or a reasonable suspicion of the commission of the crime alleged before an arrest can be made.
(iv) The unlawful arrest, harassment, humiliation, torture and detention of the 1st Applicant from the 26h of April, 20-18 to the 1st of May, 2018 by the 4th and 5th Respondent at the instance and instigation of the 1st to 3rd Respondents without any lawful and justifiable cause are unconstitutional, illegal, wrongful, degrading, oppressive null and void, and thus constitute infringements of the It Applicant’s fundamental right to dignity of human person, right to personal liberty and right to freedom of movement as enshrined under Sections 34(1), 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as Amended as Article 4, 5, 6 and 12(1) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1983.
(v) The unlawful and illegal arrest and detention of the 1st Application from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st to 3rd Respondents over a matter which is purely contractual unduly and negatively affected the business operation of the 2nd Applicant by denying the 2nd Applicant the service of the 1st Applicant and thus causes the 2nd Applicant serious losses of business profit. (See pages 8-10 of the Record of Appeal)
The 1st and 2nd Respondents filed a 104 paragraphs Affidavit deposed to by the 1st Respondent, and a Written Address in support of their Application. (See pages 17-30 and 74-88 of the Record of Appeal respectively).
The Appellants, as well as the 3rd and 4th Respondents did not file any processes before the lower Court prior to the delivery of the judgment of the lower Court.
The brief facts of the case as gleaned from the Affidavit in support of the 1st and 2nd Respondents’ Originating Motion before the lower Court is that sometime in August 2017, the 3rd Appellant approached the 1st Respondent and asked if the 2nd Respondent can enter into collaboration with the 2nd Appellant to offer escort services to the 2nd Appellant who had been engaged by ISS to provide escort services to her vessels. The 1st Respondent gave the 3rd Appellant terms and conditions to which he agreed. The 3rd Appellant also gave his conditions, to which the 1st Respondent agreed. Business between the parties was carried out successfully on a number of occasions and monies were paid as agreed.
However, on one occasion, the 1st 2nd and 3rd Appellants failed to pay the 1st and 2nd Respondents the balance due to them after completing an assigned job. Despite all the pleas of the 1st and 2nd Respondents to the Appellants, they maintained that they had not been paid by ISS, hence the delay in paying the 1st and 2nd Respondents. The Appellants wrote a petition to the Police, which contained criminal allegations against the 1st Respondent, on account of which the 1st Respondent was forcefully arrested by the Police and his fundamental human rights violated.
The lower Court entered judgment in favour of the 1st and 2nd Respondents, granting Reliefs (i), (ii), (iii), (v) and (vi) as prayed by the 1st and 2nd Respondents in their Originating Motion, and ordered the 1st, 2nd, 3rd Appellants and the 3rd and 4th Respondents jointly and severally to pay the sum of N5,000,000.00 (Five Million Naira) as general and exemplary damages and as compensation for the infringement of the 1st Applicant’s fundamental rights to dignity of human person, personal liberty and freedom of movement; and also for the loses of business profit of the 2nd Applicant.
Pursuant to the judgment of the lower Court, the 1st and 2nd Respondents commenced Garnishee Proceedings against the Appellants and the 3rd and 4th Respondents on 23/1/2019.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal on 23/1/2019. The Grounds of Appeal, as contained in the Appellants’ Notice of Appeal are as follows:
GROUND ONE
The judgment is against the weight of evidence.
GROUND TWO
The trial Court erred in law by assuming jurisdiction and deciding the case in favour of the 1st and 2nd Respondents when it held that the Appellants were duly served with the originating processes in the suit and this occasioned a miscarriage of justice.
GROUND THREE
The trial Court erred in law and this occasioned a miscarriage of justice when it made restraining orders in the manner sought for by the 1st and 2nd Respondents in their Originating Motion without affording the Appellants an opportunity to be heard.
GROUND FOUR
The learned trial Judge erred in law when he held thus:
“Reliefs sought by Appellants succeed in whole. Consequently, the following orders are made against the Respondents. I therefore enter judgment in favour of Applicant. Consequently, the following declarations are hereby made:
i. …
ii. “that the unlawful arrest, harassment, humiliation, torture and detention of the 1st Applicant from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents by the instance and instigation of the 1st to Respondents without any lawful and justifiable cause and all constitutional, illegal, wrongful, degrading, oppressive, null and void, and thus constitutes infringement of the 1st Applicant fundamental right to dignity of human person, right to liberty and right to freedom of movement as enshrined under Section 34(1), 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 4, 5, 6 and 12(1) of the Africa Charter on Human and Peoples’ Right (Ratification Enforcement) Act, 1983.
iii. That the lawful and illegal arrest and detention of the 1st Applicant from the 26th of April, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st – 3rd Respondents over a matter which is purely contractual unduly and negatively affected the business operation of the 2nd Applicant by denying the 2nd Applicant the services of the 1st Applicant and thus caused the 2nd Applicant serious losses of business profit and that occasioned a miscarriage of justice.
GROUND FIVE
The learned trial Judge erred in law when he held thus:
“iv. The Respondents are hereby jointly and severally ordered to pay the sum of N5,000,000.00 (Five Million Naira) only, being general and exemplary damages and as compensation for the infringement of the 1st Applicant’s fundamental right to dignity of human person, personal liberty and freedom of movement; and also for the losses of business profit of the second Applicant.
v. Respondents are hereby ordered to tender apology in writing in two National Dailies to the Applicant within 7 days of making this order for the unlawful breach of the 1st Applicant’s constitutionally guaranteed fundamental rights which by extension gave a bad image of the 2nd Applicant’s business.”
Without having recourse to the evidence before it and thus occasioned a miscarriage of justice.
GROUND SIX
The learned trial Judge erred in law and this occasioned a miscarriage of justice when he proceeded to hear the matter and enter judgment against the Appellants even when the 15t and 2nd Respondents failed to prove the allegation of malice against the Appellants.
On 15/2/2019, the Appellants filed a Motion on Notice praying for an order staying the execution of the judgment of the lower Court and an order restraining the Respondents/judgment creditors from taking all or any enforcement processes, including Garnishee proceedings and registration of the judgment of the lower Court in any Court in Nigeria pending the determination of this appeal.
On 15/3/2019, the 1st and 2nd Respondents filed a 12 paragraphs Counter-Affidavit in opposition to the Appellants’ Motion dated and filed on 15/02/2019.
On 15/2/2019, the Appellants filed their Brief of Argument, which was settled by A. A. Ibrahim, SAN.
On their part, the 1st and 2nd Respondents filed a Notice of Preliminary Objection and the 1st and 2nd Respondents’ Brief of Argument on 15/3/2019, which was settled by M. C. Nwoye Esq.
The Appellants filed a Reply Brief of Argument on 31/1/2020, which was deemed properly filed on 18/1/2021.
The 3rd and 4th Respondents did not file any processes in this appeal. On 10/3/2021, the Appellants filed a Motion on Notice praying this Court for an order to hear and determine this appeal on the basis of the Appellants Brief of Argument and the 1st and 2nd Respondent’s Brief of Argument filed in this suit; and an order setting down this appeal for hearing without the 3rd and 4th Respondents’ Brief of Argument, having failed to file their respective Briefs in line with the rules of this Court. The said application was granted on 2/11/2021.
ISSUES FOR DETERMINATION
In the Appellant’s Brief of Argument, learned senior Counsel to the Appellant raised two issues for the determination of this appeal, to wit:
(1) Whether on the state of the evidence on record, the 1st and 2nd Respondents discharged the onus of proof to be entitled to the judgment of the Court being given in their favour. (Distilled from Grounds 1, 4 and 5 of the Appellants’ Notice of Appeal)
(2) Whether from the evidence on record, the 1st and 2nd Respondents proved the allegation of malice against the Appellants to ground the Judgment of the Court in their favour.
(Distilled from Ground 6 of the Appellants’ Notice of Appeal)
In the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the 1st and 2nd Respondents raised a Preliminary Objection on seven Grounds, to wit:
(1) No issues were distilled from Grounds 2 and 3 of the Appellants’ Notice of Appeal and they are deemed abandoned and are liable to be struck out
(2) Appellants’ issue 1 is not distilled from Grounds 4 and 5 and therefore incompetent.
(3) Ground 6 of the Appellants’ Notice of Appeal are not related to the case and did not arise from the findings and decision of the trial Court appealed against.
(4) Appellants’ issue 2 having been distilled and argued from incompetent Ground 6 is incompetent.
(5) Grounds 4, 5 and 6 of the Appellants’ Notice of Appeal are incompetent and are liable to be struck out.
(6) Ground 1 of the Notice of Appeal is incompetent having been argued together with incompetent Grounds 4 and 5 in the Appellants’ issue 1.
(7) Appellants’ appeal is incompetent and is therefore liable to be struck out.
Learned Counsel to the 1st and 2nd Respondents distilled two issues for the determination of the substantive appeal, to wit:
(1) Whether the learned trial Judge averted his mind to the entirety of the evidence adduced by the 1st and 2nd Respondents in making a finding of fact that the violation of the 1st and 2nd Respondents’ fundamental rights by the 3rd and 4th Respondents was at the instigation of the Appellants and thereby gave Judgment jointly and severally against the Appellants and the 3rd and 47 Respondents. (Grounds 1, 4 and 5).
(2) Whether from the case presented by the 1st and 2nd Respondents at the trial Court, the 1st and 2nd Respondents had the legal burden to prove malice in order to be entitled to Judgment. (Ground 6).
ARGUMENTS OF COUNSEL
APPELLANTS’ SUBMISSIONS
APPELLANTS’ ISSUE 1
At paragraphs 3.2-3.41 of the Appellants’ Brief of Argument, learned senior Counsel to the Appellants submitted that the law is well settled that he who alleges must prove and the onus of proof in the instant case rests with the 1st and 2nd Respondents and never shifted. He relied on the case of CHINDO WORLD WIDE LTD V. TOTAL NIG PLC (2002) FWLR (PT. 115) 750 AT 774. He submitted further that a look at the claims of the 1st and 2nd Respondents will reveal that both Respondents never alleged or claimed that their Fundamental Rights is being violated or threatened to be violated, as required by Order II Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009, and they merely invited the Court to use its discretion to declare that their Fundamental Rights have been violated by the Appellants and the 3rd and 4th Respondents.
Learned senior Counsel submitted that in order to succeed in their claim, the 1st and 2nd Respondents ought to rely on the strength of their case and not the failure of the Appellants to file a Counter-Affidavit. He relied on the case of NIGER CONSTRUCTION LTD V. OKUGBEN (1987)4 NWLR (PT. 67) 787 AT 793. He submitted further that the 1st and 2nd Respondents did not discharge the onus placed on them by law. He submitted that from the averments of the 1st and 2nd Respondents, not one paragraph mentioned that the Appellants were present, had a hand directly or indirectly or in any way were responsible or influenced the police to treat them in the manner they alleged.
It is the contention of the learned senior Counsel to the Appellant that it is well settled that where evidence is unchallenged, uncontroverted and credible, the trial Court is bound to accept it, however, if an affidavit is self-contradictory or if the facts contained therein are presumed to be true and taken together are not sufficient to sustain the prayer of an application, it would be needless for a Respondent to file a Counter-Affidavit. He relied on the case of R.E.A.N. LTD V. ASWANI TEXTILE INDUSTRIES LTD (1992)3 NWLR (PT. 227) PAGE 1. He contended further that in law, where the evidence adduced does not support the case of the party and it is irrelevant to the issue or issues joined in the case, such evidence goes to no issue and could be properly ignored; also, the Applicant, in order to obtain Judgment, must prove by Affidavit the reliefs sought, otherwise, the action will fail. The learned senior Counsel relied on the case of AJAO V. ALAO (1986)5 NWLR (PT. 45) PAGE 802 AT 815 and A.G. ANAMBRA STATE V. A.G. FEDERATION (2005) ALL FWLR (PT. 268) PAGE 1557 AT 1607 PARA H.
The learned senior Counsel to the Appellant submitted that the mere fact that one party offered no evidence in an action does not entitle the evidence given by the other party to be given any weight, if in fact such evidence adduced by the party who gave evidence has no weight at all; and in the instant case, the trial Judge had the responsibility to evaluate the evidence put before him by the 1st and 2nd Respondents. He relied on the case of ANYAKORA V. OBIAKOR (2005) ALL FWLR (PT. 268) 1662 AT 1687, PARA G-H. He submitted further that the failure to produce the letter which activated the petition is fatal to the case of the 1st and 2nd Respondents, as it is the wordings in the letter that will assist the Court to know whether the report to the police was made without bias.
The learned senior Counsel submitted to the effect that the trial Court failed in its duty to evaluate the evidence before it with a view to ascribing probative value to the evidence thus, this Court has powers to interfere with the findings of the lower Court and set it aside in the interest of justice. He relied on the case of OZIBE V. AIGBE (1977)7 SC 1, OLADEHIN V. CONTINENTAL TEXTILE MILLS LTD (1978)1 LRCN 60, OKUNZUA V AMOSU (1992) NWLR (PT. 248) 416, ARE V. IPAYE (1900)2 NWLR (PT. 132) 298.
He urged this Court to resolve this issue in favour of the Appellants.
APPELLANTS’ ISSUE 2
At paragraphs 4.1 – 4.16 of the Appellants’ Brief of Argument, learned Counsel to the Appellant submitted to the effect that where a party alleges that the other party’s action is activated by malice, he owes a duty to supply the particulars in support of the allegation of malice and proffer evidence in proof of the allegation. He relied on the case of ONAH V. SCHLUMBERGER (NIG) LTD (2018)17 NWLR (PT. 1647) PAGE 84 AT 102-103. He submitted further that the learned trial Judge was in grave error in entering judgment against the Appellants without first ensuring that the 1st and 2nd Respondents proved that the Appellants’ report was actuated by malice; as the mere deposition by the 1st Respondent that the 1st Appellants’ letter to the police is activated by malice is not enough proof of malice because it amounts to a mere ipsa dixit of a party and not more.
Learned senior Counsel to the Appellant contended that by the depositions in paragraph 62, 82-89 of the 1st and 2nd Respondents’ Affidavit it can be deduced that the Appellants did not incite, teleguide or influence the police by their letter. He contended further that every citizen has a duty to report a suspected criminal offence to the police for investigation and apprehension, and the police have the discretion at its own initiative to arrest, detain and investigate the suspect and mere furnishing of information to the police upon which the police exercised their discretion to arrest and detain the 1st Respondent for investigation and without more, cannot be proof of malice. He relied on the case of BANK OF WEST AFRICA LTD V. ODIATU LLR 48. He urged the Court to resolve issue 2 in favour of the Appellants.
RESPONDENTS’ SUBMISSIONS
PRELIMINARY OBJECTION
At paragraphs 3.4-3.8 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the 1st and 2nd Respondents submitted to the effect that in the Appellants’ Brief of Argument, the Appellants failed, neglected, refused or chose not to distill any issue(s) from grounds 2 and 3 of their Grounds of Appeal, which means that the Appellants have abandoned the two grounds and the said grounds are liable to be struck out. He relied on the cases of TERIBA V. ADEYEMO (2010) LPELR-3143(SC), SALIHU V. WASIU (2016)5 NWLR (PT. 1506) PG 423 AT 435 PARAS D-E. Counsel urged this Court to strike out both grounds 2 and 3 of the Grounds of Appeal since no issues were formulated from them.
At paragraphs 3.9 – 3.19 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the Respondents submitted to the effect that the Appellants’ issue 1 does not relate to grounds 4 and 5 of the Notice of Appeal and therefore, the said issue 1 which does not relate to any Grounds of Appeal is incompetent; and same also goes for Grounds 4 and 5 from where no issue is distilled, hence, both issue 1 and all the arguments in support thereof, as well as Grounds 4 and 5 are liable to be struck out. Counsel submitted further that the arguments in the Appellants’ Brief of Argument, as contained in paragraphs 3.11-3.23 and 3.36-3.37, on the non-participation of the Appellants in the arrest and detention of the 1st Respondent; arguments in paragraphs 3.24-3.28 on adducing of evidence and proof of facts; arguments in paragraphs 3.28-3.41 on evaluation of evidence are all rooted to the Appellants’ grounds 4 and 5, therefore, they are all incompetent and liable to be struck out. Learned Counsel relied on the cases of UGBO & ANOR V. UGBO (2018) LPELR-43783 (CA); AHMED V. ABU & ANOR (2016) LPELR-40261 (CA), JOHN V. STATE (2016)11 NWLR PT 1523 PG 191, ZACCHAEUS ABIODUN KOYA V. UNITED BANK FOR AFRICA LTD (1997) LPELR-1711 (SC). He urged this Court to strike out Grounds 4 and 5 of the Appeal, as well as issue 1 and the arguments made there in for being incompetent.
At paragraphs 3.20-3.26 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel contended to the effect that a Ground of Appeal must relate to the case appealed against and must challenge the decision in the judgment being appealed, otherwise, the ground is incompetent. He submitted further that Ground 6 of the Appellants’ Notice of Appeal is not related to the case and did not arise from the findings of the lower Court, hence, it is liable to be struck out. Learned Counsel relied on the cases of PDP V. SHERRIF (2017)15 NVVLR PT 1588 PG 219, ORIANZI V. AG RIVERS STATE (2017)6 NWLR PT. 1561 PG 224, ADEGOKE MOTORS LTD V. ADESANYA (1989)3 NWLR PT. 109 PG 250, STATE V. OMOYELE (2017)1 NWLR PT. 1547 PG 341 AT 369-370. He urged this Court to strike out the incompetent Ground 6 of the Appellants’ Notice of Appeal and Issue 2 of the Appellants’ Brief of Argument which was distilled from it.
At paragraphs 3.27 and 3.28 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel submitted that Ground 1 of the Appellants’ Notice of Appeal, which is the omnibus ground, is also incompetent, having been argued together with the incompetent Grounds 4 and 5 in issue 1. He relied on the case of SUNDAY OYEBADEJO V. RAMONI OLANIYI & ORS (2000) LPELR-6926 (CA).
At paragraphs 3.29 and 3.30 of the 1st and 2nd Respondents’ Brief of Argument, learned counsel submitted to the effect that since the entire Appellants’ Grounds of Appeal are either incompetent or deemed abandoned; and their issues for determination are also incompetent, the Appellants’ appeal is incompetent and liable to be struck out. He urged this Court to strike out this appeal on the strength of the Preliminary Objection.
ARGUMENTS ON SUBSTANTIVE APPEAL
1ST AND 2ND RESPONDENTS’ ISSUE 1
At paragraphs 5.1-5.7 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the 1st and 2nd Respondents submitted to the effect that the learned trial Judge averted his mind to the entirety of the evidence adduced by the 1st and 2nd Respondents and evaluated same before arriving at his findings. He referred this Court to the judgment of the lower Court in pages 160-187 of the Record of Appeal. Counsel submitted further that a superior Court of Record does not need to restate all the paragraphs of an Affidavit evidence on record before it can make a finding by way of reasonable inference and conclusion and deliver judgment in favour of a party and against the other, as long as it is obvious from the judgment that the lower Court appraised and considered the contents of the Affidavits filed by the parties. And where such is the case, the lower Court will not interfere with the evaluation of evidence except where an Appellant visibly demonstrates the perversity of the findings made by the Lower Court. He relied on the cases of OKE V. MIMIKO (NO. 2) (2014)1 NWLR (PT. 1388) 332 AT 397-398 and GUNDIRI V. NYAKO (2014)2 NWLR (PT. 1391) 211.
At paragraphs 5.8-5.10 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel submitted that from Grounds 4 and 5 of the Appellants’ Notice of Appeal, the Appellants did not refer to any or the specific portion of the Affidavit evidence which the Trial Judge failed to advert his mind to, and which, if he had appraised and evaluated, it would have made a difference in the judgment; and such is an improper way of seeking the interference of an appellate Court with the evaluation of evidence carried out by a Lower Court. He relied on the case of YANDY V. ALHAJI UMAR NA ALHAJI LAWAN & SONS LTD (2018) LPELR-45634 (CA). Counsel submitted further that once a trial Court has duly evaluated evidence as presented before it, attach weight, makes a finding of facts and reaches a conclusion, the Appellate Court does not interfere with such finding unless it is perverse. He relied on the case of ETUK V. HERITAGE BANK PLC (2018) LPELR-45777 (CA).
At paragraphs 5.11-5.15 of his Brief of Argument, Counsel submitted to the effect that the Appellants, 3rd and 4th Respondents were duly served with the Originating Processes at the lower Court and had ample time to respond to all allegation of facts made by the 1st and 2nd Respondents, but they refused to defend their suit, and the trial Court rightly applied the relevant principle of law in deeming the 1st and 2nd Respondents’ Affidavit as admitted, acted on and made the reasonable inference. He relied on the cases of BOB-MANUEL V. AG RIVERS STATE (2016)11 NWLR PT. 1523 PG 364 AT 384-385 PARAS H-A, BABALOLA V. STATE (1989)4 NWLR PT. 115 PG 264 AT 276 PARAS B-C. Counsel submitted further that the Appellants, having failed to appear before the trial Court in defence of their case, cannot do so now by urging this Court to review the evidence which the trial Court had rightly evaluated, made a finding and delivered a Judgment that is in no way perverse. He relied on the case of OKIKE V. LPDC (2005)15 NWLR PT. 949 PG 471.
At paragraphs 5.16-5.18 of the 1st and 2nd Respondents’ Brief of Argument, Counsel submitted to the effect that the fact that the 1st and 2nd Respondents did not attach the petition which triggered the breach of the 1st Respondent’s right could not have deterred the trial Court in finding as a fact that the Appellants and the 3rd and 4th Respondents unlawfully infringed the rights of the 1st and 2nd Respondents. On the contrary, it was the duty of the Appellant (who wrote the petition and who ought to have the acknowledgment copy) and the 3rd and 4th Respondents (to whom the petition was written) to present the said petition before the Court so that the Court can consider the content of the petition and make a finding as to whether the said petition was indeed reasonable. He relied on the case of CHAIRMAN, EFCC V. LITTLE-CHILD (2016)3 NWLR PT. 1498 PG. 72.
Learned Counsel to the 1st and 2nd Respondents submitted at paragraphs 5.19 – of his brief to the effect that contrary to the Appellants’ submissions at grounds 4 and 5 of their Notice of Appeal, the 1st and 2nd Respondents showed in their Affidavit that apart from writing the petition, the Appellants played a leading role in the arrest, detention and breach of the 1st Respondent’s fundamental rights. He submitted further that the Appellants need not be present during the violation of the 1st Respondent’s rights to be culpable, as once it is shown that their role in the violation of the rights went beyond mere writing of petition, they are as culpable as the police which directly carried out the violation. He relied on the case of AJAO V. ASHIRU (1973)8 NSCC 525 and referred this Court to various paragraphs of the 1st and 2nd Respondents’ Affidavit depicting how the 1st and 2nd Respondents showed that the role of the Appellants went beyond writing the petition. Counsel submitted further that the facts of the Appellants’ involvement in the infringement of the 1st Respondent’s right was never controverted or challenged by the Appellants and the allegation of facts as shown in the particulars to Grounds 4 and 5 of the Grounds of Appeal are untrue and merely an afterthought.
Counsel to the 1st and 2nd Respondents urged this Court to resolve this issue in favour of the 1st and 2nd Respondents and against the Appellants.
1ST AND 2ND RESPONDENTS’ ISSUE 2
At paragraphs 6.1-6.11 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel to the Respondents submitted to the effect that the 1st and 2nd Respondents did not, by any stretch of imagination, bring the common law suit of malicious prosecution that would have required of them to prove certain elements in proof of malicious prosecution which include the proving of malice by the person who might have engineered the prosecution of the Plaintiff without any reasonable cause; and from all the facts as stated by the 1st Respondent, there is nowhere he stated that he was prosecuted by the 3rd and 4th Respondents which prosecution finally went in his favour, hence, it is strange for the Appellants to state in Ground 6 of their Notice of Appeal that the trial Court erred in law to have entered judgment against the Appellants when the 1st and 2nd Respondents failed to prove the allegation of malice. Counsel submitted further that what the law requires of the 1st and 2nd Respondents as enshrined in Section 46(1) of the Constitution is to show clear evidence that there has been, or a likelihood of the contravention of their rights as guaranteed by the Constitution. He relied on the case of NWANGWU & ANOR V. DURU & ANOR (2001) LPELR-7001 (CA). Counsel submitted that it is not in doubt that the 1st and 2nd Respondents, in the case presented before the trial Court, brought same under the relevant sections of Chapter IV of the Constitution, which the Court found meritorious and gave judgment in their favour. Counsel contended that in any case, it has been held that instigating the arrest and detention of an Applicant is unlawful and malicious in the legal sense and that such malice may not be considered in the form of spite or hatred but something done with an unreasonable and improper motive. He relied on the case of OKONKWO V. OGBOGU (1996)5 NWLR PT 449 PG. 420.
The learned 1st and 2nd Respondents’ Counsel submitted that what the Appellants did in this appeal is to bring a case to this Court which is totally different from the case presented by the 1st and 2nd Respondents before the trial Court.
Counsel urged this Court to discountenance all the arguments of the Appellants and the cases cited by them, resolve the Respondents’ issue 2 in favour of the 1st and 2nd Respondents, and resolve the Appellants’ issue 2 against the Appellant.
In conclusion, learned Counsel to the 1st and 2nd Respondents urged this Court to strike out the Appellants’ appeal based on the 1st and 2nd Respondents’ Preliminary Objection and also consider this appeal on merit and dismiss it with substantial cost in favour of the 1st and 2nd Respondents, as the appeal lacks merit.
APPELLANTS’ REPLY
In response to paragraphs 3.10, 3.11 and 3.14 of the 1st and 2nd Respondents’ Preliminary Objection, the learned senior Counsel to the Appellants submitted that where a Ground of Appeal is not capable of misleading the other party and the Court is satisfied that the meaning can be reasonably elicited, it cannot be considered objectionable. He relied on the case of MTN COMM. LTD V. ABUBAKAR & OJO (2015)1 C.A.R. PG 132 AT 151, PARAS C-F. Learned senior Counsel submitted further that Grounds 1, 4 and 5 of the Notice of Appeal are not misleading; they are clear and have conveyed the grievances and dissatisfaction of the Appellants, and same cannot be considered objectionable.
Learned senior Counsel to the Appellants submitted that it is settled law that an issue can be distilled from more than one Ground of Appeal where the grounds are related. He referred this Court to the case of ARIYA V. ABIGOR (2016) ALL FWLR (PT. 84) PG 1476 PARA C. He submitted further to the effect that contrary to the 1st and 2nd Respondents’ argument that issue 1 of the Appellants’ appeal distilled from Grounds 1, 4 and 5 is incompetent on the basis that Ground 4 and 5 border on evaluation of evidence and have nothing to do with onus of proof, Ground 1 borders on evidence, that is the burden of proof on the 1st and 2nd Respondents, while Grounds 4 and 5 border on evaluation of evidence adduced before the Court by the 1st and 2nd Respondent. The three grounds are interrelated, as what is proved before the Court is what the Court evaluates and can be argued together, as there is no law that prevents an issue to be distilled from more than one ground.
The learned Counsel to the Appellants submitted that it is trite law that an Issue for Determination will not be struck out if it relates to a Ground of Appeal. He relied on the case of DANIEL V. INEC (2015)9 NWLR (1463) PG 113 AT 114, PARAS B-C. He submitted further that issue 1, having been distilled from Grounds 1, 4 and 5 which are related, is competent for the determination of this appeal. He submitted further that it is settled law that for an objection challenging competence of a Ground of Appeal to be sustained, it is the duty of Counsel who objects to establish the complaint since he who alleges must prove. The learned senior Counsel relied on the case of SHEIDU V. STATE (2014) ALL FWLR (PT. 750) PG 1381 AT 1390, PARA F. He submitted further that the 1st and 2nd Respondents Counsel having failed to establish that Grounds 1, 4 and 5 of the Appellants’ appeal are incompetent, the preliminary objection is liable to be rejected and discountenanced.
In response to paragraphs 3.17, 3.18 and 3.19 of the 1st and 2nd Respondents’ Preliminary Objection, it was submitted on behalf of the Appellants that it is settled law that issues are formulated from Grounds of Appeal while the appeal is argued based on the issues formulated, and this is exactly what the Appellants did in their Brief of Argument and if there is anything short of that, the 1st and 2nd Respondents have not shown such, but only made a sweeping generalization.
In response to paragraphs 3.20-3.26 of the 1st and 2nd Respondents’ Brief of Argument, learned senior Counsel to the Appellants submitted that the law is trite that Grounds of Appeal must arise from and relate to the decision against which appeal lies and should constitute a challenge to the ratio of the decision. He relied on the case of ORIANZI V. AG RIVERS STATE (2017)6 NWLR (PT. 1561) PG 224 @261. He submitted further that Ground 6 of the Appellants’ appeal emanated from the decision of the trial Court and is a challenge to the ratio of the said decision which was principally based on the depositions in the 1st and 2nd Respondents’ Affidavit admitted and acted upon by the trial Court.
In response to paragraphs 5.11-5.15 of the 1st and 2nd Respondents’ Brief of Argument, learned senior Counsel to the Appellants submitted that he who alleges must prove, and it is no justification whatsoever that if the Defendant failed to give evidence in rebuttal, the Plaintiff’s claim succeeds. The Plaintiff must succeed on the strength of his case and not the weakness or failure of the Defendant to adduce evidence. He relied on the case of YOUNG V. CHEVRON (NIG) LTD (2014) ALL FWLR (PT 747) PG 620 AT 642 PARAS C-D. He submitted further that it is not in every situation that failure to file a Counter-Affidavit will result in the unchallenged or uncontradicted facts being deemed admitted and correct. He relied on the case of CHAIRMAN EFCC V. LITTLECHILD (2016)3 NWLR (PT. 1498) PG 72 AT 92 PARAS A-C.
Learned senior Counsel to the Appellants contended that the failure of the 1st and 2nd Respondents to produce or attach Petitions upon which their complaint was anchored is no doubt fatal to their case, and in the absence of the petitions, this Court should set aside the decision of the trial Court.
In response to paragraphs 5.19-5.35 of the 1st and 2nd Respondents Brief of Argument, the learned senior Counsel to the Appellants submitted that the allegations in the Affidavit without documentary evidence or facts to prove same are liable to fail; and it is more crucial that even the purported allegation of connivance between the police and the Appellants was not established before the trial Court. He relied on the case of AIRTEL NETWORKS LTD V. GEORGE (2015)4 NWLR (PT. 1448) PG 60 AT 87, PARAS B-D.
In conclusion, the learned senior Counsel to the Appellants urged this Court to set aside the Judgment of the trial Court and allow this appeal.
RESOLUTION OF ISSUES
PRELIMINARY OBJECTION
The 1st and 2nd Respondents filed a Notice of Preliminary Objection on 15/03/2019 praying the Court for an Order striking out Grounds 1, 2, 3, 4, 5 and 6 of the Appellant’s Notice of Appeal, an order striking out issues 1 and 2 of the Appellant’s Brief of Argument and an order striking out the Appellant’s Appeal No. CA/A/79/2019 as being incompetent. The arguments on the Preliminary Objection is contained at paragraphs 3.4 – 3.31 of pages 4-9 of the 1st and 2nd Respondents’ Brief of Argument.
At paragraph 3.5 of the 1st and 2nd Respondents’ Brief of Argument, learned Counsel submitted that the Appellants failed or neglected to distill any issue(s) from the said grounds 2 and 3, and therefore, the Grounds are deemed abandoned.
The Appellants learned senior Counsel, in the Reply Brief of Argument of the Appellants submitted that where a Ground or Grounds of Appeal is/are not capable of misleading the other party and the Court is satisfied that its meaning can be reasonably elicited, it cannot be considered objectionable. He relied on the dictum of Ogundare JSC (of blessed memory) in TAVERSHIMA M. HAMBE & ANOR V. AGBHUAZE SHID & ANOR (2001)5 NSCQLR 342 AT 355.
The law is that where no issue is formulated from a Ground of Appeal, the Ground is deemed abandoned and the resultant effect is that the said Ground is struck out. See FMC IDO EKITI & ORS V. KOLAWOLE (2011) LPELR-4149 (CA).
In the case of LALAPU V. COP (2019) LPELR 47814, the Supreme Court held as follows:
“The 1st and 2nd Grounds of Appeal are abandoned, since no issues have been formulated from them. They are hereby struck out in line with the decision of this Court in ADELEKAN V. ECU-LINE NV (2006) ALL FWLR (PT 321) 1213, where Onnoghen JSC (as he then was) held: “it is settled law that where no issue is formulated from any Ground of Appeal, the said ground is deemed abandoned, the same principle of law applies to a situation where it is found that issues formulated by an Appellant do not relate to the Grounds of Appeal. The said grounds must be deemed abandoned since no issues have been distilled from them and are therefore liable to be struck out.” The 1st and 2nd Grounds of Appeal are accordingly struck out.”
See also ITOK V. UDOYO (2020) LPELR-52524 (SC), PDP V. INEC & ORS (2014)17 NWLR (PT. 1437) 525, NGILARI V. MOTHERCAT LTD (1999) LPELR-1988 (SC) In the instant appeal, grounds 2 and 3 of the Notice of Appeal of the Appellants and no issue culled from the two grounds, they are deemed abandoned, and hereby struck out.
The next objection of the 1st and 2nd Respondents is that issue 1 distilled for determination and culled from grounds 4 and 5 do not relate to the said grounds 4 and 5 of the Notice of Appeal. Learned Counsel to the 1st and 2nd Respondents therefore submitted that Issue 1 as well as grounds 4 and 5 from which no issue was distilled from, are incompetent and liable to be struck out. The Appellants’ learned senior Counsel on the other hand submitted in the Appellant’s reply brief that grounds 1, 4 and 5 are not misleading; they are clear and have conveyed the grievance and dissatisfaction of the Appellants, and same cannot be considered objectionable.
Now, grounds 4 and 5 of the Notice of Appeal are hereunder reproduced for ease of reference:
GROUND FOUR
The learned trial Judge erred in law when he held thus:
‘Reliefs sought by Appellants succeed in whole. Consequently, the following orders are made against the Respondents. I therefore enter judgment in favour of Applicant, Consequent, the following declarations are hereby made:
i…
ii. “that the unlawful arrest, harassment, humiliation, torture and detention of the 1st Applicant from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents by the instance and instigation of the 1st to 3rd Respondents without any lawful and justifiable cause and unconstitutional, illegal, wrongful, degrading, oppressive, null and void, and thus constitutes infringement of the 1st Applicant fundamental right to dignity of human person, right to liberty and right to freedom of movement as enshrined under Section 34(1), 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 4, 5, 6 and 12(1) of the Africa Charter on Human and Peoples’ Right (Ratification Enforcement) Act, 1983.
iii. That the unlawful and illegal arrest and detention of the 1st Applicant from the 26th of April, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st – 3rd Respondents over a matter which is purely contractual unduly and negatively affected the business operation of the 2nd Applicant by denying the Applicant the services of the 1st Applicant and thus caused the 2nd Applicant serious losses of business profit” and that occasioned a miscarriage of justice.
GROUND FIVE
The learned trial Judge erred in law when he held thus:
“iv. The Respondents are hereby jointly and severally ordered to pay the sum of N5,000,000.00 (Five Million Naira) only, being general and exemplary damages and as compensation for the infringement of the 1st Applicant’s fundamental right to dignity of human person, personal liberty and freedom of movement; and also for the losses of business profit of the second Applicant.
v. Respondents are hereby ordered to tender apology in writing in two National Dailies to the Applicant within 7 days of making this order for the unlawful breach of the 1st Applicant’s constitutionally guaranteed fundamental rights which by extension gave a bad image of the 2nd Applicant’s business.”
Without having recourse to the evidence before it and thus occasioned a miscarriage of justice.
The issue distilled from the said grounds 1, 4 and 5 reads as follows:
“Whether on the state of the evidence on record, the 1st and 2nd Respondents discharged the onus of proof to be entitled to the judgment of the Court being given in their favour.”
The learned Counsel to the 1st and 2nd Respondents argued that there is no connection between evaluation or assessment of evidence and ascription of probative value to such evidence which is the judicial function of the Judge; and the onus of proof or evidential burden of proof which is the duty of a party to prove his case by adducing sufficient evidence to meet the required standard of proof to prove his case.
I have closely perused the issue 1 culled from Grounds 1, 4 and 5. The learned Counsel to the 1st and 2nd Respondents is not complaining about Ground 1 which simply says: “The judgment is against the weight of evidence.”
This general or omnibus ground is related to issue one. This is because it is trite law that where the decision of a Court is predicated on Affidavits filed by parties, then an omnibus or general Ground of Appeal can be properly couched to challenge the evaluation of facts in the Affidavit.
See ODUOLA & ORS V. COKER (1981)5 SC 197, NEIMOGHA & ANOR V. ORUBAYI (2015) LPELR-24526, ADEBAYO & ORS V. PDP & ORS (2012) LPELR-8430 and ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA V. THE GOVERNOR OF BAYELSA STATE & ORS (2019) LPELR-47261 (CA).
While I agree with the learned Senior Counsel to the Appellants that an issue can be distilled or culled from one or more Grounds of Appeal, the issue culled must relate to the said ground(s). In the instant case, there is no doubt that issue one does not relate to grounds 4 and 5, therefore, grounds 4 and 5 are deemed abandoned and are accordingly struck out.
However, I disagree with the learned Counsel to the 1st and 2nd Respondents that issue one be struck out. Issue one can survive under ground one, and thus, it relates to a competent ground, thus, issue one is also competent and cannot be liable to an order striking it out. Hence, all arguments pertaining to issue one cannot be discountenanced.
The learned Counsel also at paragraph 3.20 of the 1st and 2nd Respondents’ Brief of Argument submitted to the effect that Ground 6 of the Appellant’s Notice of Appeal is not related to the case and did not arise from the findings and decision of the trial Court appealed against. Learned Counsel cited plethora of judicial authorities to support his contention.
The Appellant’s learned senior Counsel did not proffer any meaningful reply to the objection on Ground 6, but only submitted at paragraph 1.13 of the Reply Brief that Ground 6 not being formulated outside the decision and the controversy between the parties, cannot be said to be incompetent and therefore, Issue 2 should not be struck out, as same is competent, having been distilled from a competent ground.
In any event, I have perused the entire judgment of the trial Court, and particularly at page 180 of the Record of Appeal, the trial Court reproduced the Affidavit evidence of the 1st and 2nd Respondents at paragraphs 98, 99, 100 and 101 as follows:
(98) I suffered humiliation, embarrassment, threatened and handcuffed as a result of the 1st – 3d Respondents and the use of naked force by the 4th and 5th Respondents.
(See also paragraph 52 of the Affidavit)
(99)
(100)
(101)
The case of the 1st and 2nd Respondents as rightly submitted is not about malicious prosecution and neither is Ground 6 about malicious prosecution. The Ground 6 reads thus:
“The learned trial Judge erred in law and this occasioned a miscarriage of justice when he proceeded to hear the matter and enter judgment against the Appellants even when the 1st and 2nd Respondents failed to prove the allegation of malice against the Appellants.”
Now, there is a difference between malicious prosecution and a civil wrong or a malicious process. In the case of IGP & ANOR V. UBAH & ORS (2014) LPELR-23968, this Court held:
“Malicious process has been defined as a civil wrong separate from malicious prosecution, which entails instituting a legal process short of prosecution without probable cause and with malice.”
Ground 6 of the Notice of Appeal is therefore a complaint arising from the decision of the trial Court and therefore it is competent. Issue 2 for determination is therefore competent and properly culled from Ground 6 of the Notice of Appeal.
In sum, the Preliminary Objection of the 1st and 2nd Respondents succeeds in part.
RESOLUTION OF ISSUES IN THE MAIN APPEAL
ISSUE TWO
The law is trite that he who alleges or asserts must prove. A party who prays a Court of law to grant one order or another must furnish cogent evidence in support of same, as the decision of the Court must be based on evidence and not on speculation or baseless allegations. Thus, a party who alleges the existence of a particular set of facts and instances must prove the existence thereof via evidence to the standard set by law. See SECTIONS 131-134 of the EVIDENCE ACT, 2011 (AS AMENDED). See also RAPID RICH RESOURCES LTD V. POLARIS BANK (2019) LPELR-50413 (CA).
In the instant case, the main or principal claims or reliefs sought by the 1st and 2nd Respondents (as Applicants) at the trial Court, i.e. Reliefs (i), (ii) and (iii) are Declaratory Reliefs. And the law is that for a Court of law to grant Declaratory Reliefs, it must be based on concrete and credible evidence adduced by the Applicants and such reliefs are not even granted on the admission of the Defendant or in default of defence. See KWAJAFFA & ORS V. B.O.N LTD (2004) LPELR-1727 (SC) and CHAIRMAN EFCC V. LITTLECHILD (2016)3 NWLR (PT. 1498) PAGE 72 AT 92.
Now, I have gone through the Affidavit supporting the Motion on Notice, I have seen and perused the exhibited documents attached to the Affidavit of 104 paragraphs. There is no doubt that by the Affidavit evidence and the exhibited documents, there is a contractual relationship between the Appellants and the 1st and 2nd Respondents.
In particular, I have seen and perused Exhibits DJ10, DJ11, DJ12, DJ13, DJ14 and DJ15. I have seen and perused painstakingly the depositions at paragraphs 52-93 of the Affidavit supporting the Originating Motion, which are reproduced as follows:
“(52) Despite the fact that the issue between us and the 1st – 3rd Respondents was purely civil dispute arising from contractual relationship which can be settled amicably or at worse be settled by a civil suit, the 1st to 3d Respondents carried out their motive of using the machinery of the state to maliciously prosecute me; and then instigated the Police to unlawfully arrest and detain me so as to cow me to yield to their desire of letting go of the sum of $39,666.69 to people that are on my neck.
(53) The above was what transpired between the Applicants and the 1st to 3rd Respondents leading to the 1st, 2nd and 3rd Respondents to actually live to their bragging of dealing with me and the 2nd Applicant as I shall narrate below.
(54) On Thursday, the 26th of April, 2018, a number identified in my phone as 08024750415 called my phone number (08067271172) at exactly 15:36 hrs, and said he was calling from Brawa Shipping. It happened to be the 5th Respondent that called me.
(55) The 5th Respondent stated in that call that his Boss sent my number to him to call me so that we can discuss an escort job he had for me to bring in a mother vessel known as MAMA for berthing on the 28h of April 2018.
(56) I told him pointedly that this hasty arrangement to bring in this mother vessel is too short to make adequate arrangements, but he insisted that I should first of all come to his office at No. 30 Apara Link Road, off Evo G.R.A., Phase 2, Port Harcourt, so that we can meet and ta/k about the job.
(57) So I gave the 5th Respondent about one and half hour to be there. I finally took a taxi and arrived at No. 30 Apara Link Road, off Evo G.RA. at exact/y 16:25 hrs and called him on the number he used to call me.
(58) The 5th Respondent told me that he had gone outside to eat; but only for him to walk out from a corner in the company of 3 fiery looking men who were not in police uniform, but who identified themselves as police officers with one of them flashing his ID card on me.
(59) The 5th Respondent then informed me that they were from Abuja on a petition written against me and the 2nd Applicant, and that I have to follow them to the police station.
(60) The 4 police officers immediately surrounded me and forced me to enter a Camry car and then drove me down to Olu Obasanjo Police Station, Port Harcourt, and into their interrogation room.
(61) The police officers gave me a copy of a statement form and asked me if I knew one Paul; I asked them if it was Paul of Pargel Nig. Ltd, and the 5th Respondent answered in the affirmative.
(62) They gave me a copy of a petition and asked me to respond. The subject of the petition reads: “THREAT TO LIFE AND OBTAINING UNDER FALSE PRETENSE THE SUM OF FORTY-ONE THOUSAND DOLLARS ($41,000). “
(63) Reading through the petition I noticed that the 1st Respondent on behalf of the 2nd Respondent had claimed that I defrauded him of $41,000, and that he had to pay another company to complete the job, which nevertheless, I started and completed the said job.
(64) Secondly, in the petition the 1st Respondent claimed that I led militants to the ISS to threaten the lives of the multinationals if I was not paid my balance.
(65) I then responded in my statement with dates starting from the days we were mobilized and our company’s agreement with the 3rd Respondent prior to starting off the operation and subsequently how we are now being owed.
(66) After writing my statement, the 5th Respondent gave me my phone and asked me to call my people to tell them where I was. I called my fiancée, and was about calling a lawyer friend at which point he forcefully took away the phone from me.
(67) The 5th Respondent asked that I be detained, and the police officers at the police station asked me to undress, which I did. I was left only with my pants, and they led me into a stinky and stuffy cell where I was left alone.
(68) I was the only one in the mosquito infested cell and more than 50 mosquitoes feasted on my naked body while I was made to keep vigil the whole night as I was unable to close my eyes to sleep amidst the unpleasant music and bites of the mosquitoes.
(69) At about 9:30am the next day, the 27th of April, 2018, which is Friday, I was brought out from the cell and was made to dress up. The 5th Respondent informed me that we are heading to Abuja. This was after I had made my statement, and despite the fact that there are Federal High Court and State High Court in Port Harcourt where they would have charged me to Court if there was any strong evidence against me.
(70) I was taken away that morning in a handcuff like a common criminal in the presence of my Mother and my younger brother who had already come to the station that morning to visit me but were left in tears as I was led to a vehicle by the 5th Respondent, and together with one Jaminu, the driver and I, we allegedly headed to Abuja.
(71) While we were approaching East West Road, Port Harcourt and I was still in handcuff, the 5th Respondent told me that we would be driving through Bayelsa State to pick up a colleague of his for onward movement to Abuja I did not utter a word.
(72) The driver drove straight to Yenegoa, Bayelsa Capital while the 5th Respondent was asking directions to the Bayelsa State Criminal Investigation and Intelligence Department (CIID).
(73) We finally got to the State CID, and the 5th Respondent immediately filled a detention order and submitted to the office. I was made to take off my clothes and shoes again, and I paid N100 at the counter so that a bag can be bought to put my belongings.
(74) I was locked inside another dirty and terrifying cell with 7 persons inside who later assaulted me physically and three of them used my body as pillows to give them comfort and throughout the night, I was in serious pains and was not able to sleep.
(75) The following day, being Saturday, the 28th of April, 2018, I spent the whole day in the cell in Yenegoa with no food and water and in the presence of the hostile inmates who continued to oppress and intimidate me. I was deeply horrified and was left in total fear for the safety of my life.
(76) I was so weak and sick as a result of hunger and the unpleasant conditions and I had already been subjected to within the few days of my incarceration. Yet, on the night of that Saturday, it was the intervention of one of the inmates that I was left un-abused that night by the hostile inmates.
(77) The following morning being Sunday, April 2018, at about 6:00am, the 5th Respondent came to the station in Yenegoa and asked that I should be brought out from the cell. I came out, dressed up and was put into a waiting Sienna vehicle with four other persons on board, and we left for Abuja.
(78) Despite the fact that there are Courts in Yenegoa, I was not charged to any Court after having been detained for about four days.
(79) We arrived Abuja at exact/y 21:20 hrs, the 5b Respondent detained me again with the other four persons at Force CID, Garki Area 10 cell. The cell, like the other two cells, was also stuffy, poorly ventilated and stinky.
(80) The 5th Respondent later told me that I will be meeting with the petitioner(s) the next day which was Monday, the 30th of April, 2018. I asked him for my phones to make calls, but the 5th Respondent declined. I was left throughout without any legal protection.
(81) The next morning, being the 30th of April, at exactly 11:30am, I was brought out from the cell and taken to the Admin section upstairs and was presented with a bail form to fill. I filled the said form. After filling the form, they took me back to the cell.
(82) At about 15:00, I was taken out of the cell again to the Admin Section where the Petitioner, the 1st Respondent was already waiting with his lawyer.
(83) We were then led to the Chief Superintendent of Police (CSP) Admin’s office for the interview. The 1st Respondent was asked to present his case, and he stated that I duped him of the sum of $41, 000 and that I received in total from him the sum of $75,000 via transfer and through the 3d Respondent and that I never completed the job, and he had to pay my supplier Seakey Marine Ltd to complete the job for AL-WUKIR.
(84) He went further to say that he gave me money on the 1st of November, 2017, to prepare for escort service on the of November, 2017 and not on the 3rd of November, 2017. He never made mention that I took militants to the ISS (their clients) to threaten the lives of the multinational workers which was also part of the petition he made against me.
(85) After his submission, I was allowed to present my own case. I reminded the 1st Respondent about the email he sent to me on the 1st of November, 2017, which was also copied to the 3d Respondent, to prepare for sailing on the 3rd of November, 2017 after making some part payment to me on the 30th of October, 2017 and another payment to me on the 1st of November, 2017 for preparation.
(86) I also narrated how the 3d Respondent, on the 1st of November, 2017 led the ISS staff who came on board MV WANNYSTEPH which was to be used for the escort service to inspect and certify her okay for the said job and asked us to conclude all logistic arrangement to sail on the 3rd of November, 2017, And on that certification, we finally took over the vessel on the 2d of November, 2017, and prepared her for sailing for the 3rd of November, 2017.
(87) I also reminded the 1st Respondent of how he paid $34, 000 and also gave me another $1000 as part payment for remobilization to sail on the of November, 2017 after we could not get in contact with AL WUKIR to escort her from high sea to BRT Bonny. And also the sum he paid again for the remobilization of MV SEA STALLION on the 12th of November, 2017 which was $34,000 making it a total sum of $69,000.
(88) I also brought up the allegation of my taking militants to ISS premises to threaten the lives of the multinationals if I was not paid, but the police officers stopped me, and the CPS informed me that I had been granted bail.
(89) The CSP also advised both the 1st Respondent and me not to make trouble and allow the police to properly investigate the matter by coming down to Port Harcourt on Monday, the 7th of May, 2018 to conduct further investigation.
(90) After we left the CPS’s office to the 5th Respondent’s office, the 5th Respondent told the 1st respondent and I to make available One Hundred and Fifty Thousand Naira (N150,000.00) each for further investigation at Port Harcourt on Monday, the 7th of May, 2018.
(91) It took the intervention of my lawyer who sent a text to the 5th Respondent (which was also forwarded to me) informing him that I would not pay any amount of money for an allegation of crime which I did not commit and over a matter that is anything but criminal.
(92) Because I could not get a surety to stand for my bail, I was still detained that same 30th of April, 2018 until the next day 1st of May, 2018 when I was finally released around 4pm.
(93) I dressed up and the 5th Respondent gave me my phones. I noticed immediately that my Samsung Tab which I gave to him in good working condition was not coming up. I instantly told the 5th Respondent about the Samsung. I repaired the Tab at the sum of N45,000 which I am yet to pay. The Maintenance receipt is hereby attached and marked as Exhibit 14.
The averments therein are capable of belief as the true state of affairs that occurred between the 1st Respondent and the Appellants from the point of arrest up to the office of the 4th and 5th Respondents narrating the specific times and dates. These facts have not been denied by the Appellants by filing a Counter-Affidavit. The presumption of the law is that those facts have been admitted or that the Appellants have no defence to the facts deposed therein. See IJEZIE V. IJEZIE (2014) LPELR-23773 (CA), HONDA PLACE LTD V. GLOBE MOTORS HOLDINGS (NIG) LTD (2005)11 MJSC 1 AT 15 where KATSINA ALU JSC, later CJN held:
“No Counter-Affidavit was filed by the Respondent. With that, the facts deposed to in support of the application were neither challenged nor disputed by the Respondent. What this means is this: those facts remain unchallenged and uncontroverted. The inevitable consequence is that those facts deposed to in the Affidavit filed by the Applicant must be deemed to have been admitted by the Respondent and also be taken as true by the Court, unless they are obviously false to the knowledge of the Court. See ALAGBE V. ABIMBOLA (1978) 2 SC 39 AT 406, Nwosu v. Imo State Environmental Agency (1990)2 NWLR (pt. 135) 668 at 7721A and 735B.”
The Affidavit of the 1st and 2nd Respondents are detailed to show how the 1st Respondent’s Fundamental Human Rights were breached. See OANDO PLC V. FARMATIC BIO GAS WEST AFRICA LTD & ANOR (2018) LPELR-45564(CA).
In the case of ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) V. DIAMOND BANK PLC & ORS (2018) LPELR-44217, the Supreme Court stated the circumstances that amount to breach of Fundamental Rights where it held thus:
“I must say that I took the pain to reproduce the above paragraphs of the Affidavit because I have looked at the affidavit by the Appellant in opposing the application, but these averments were not effectively denied by the Appellant. The Appellant has not offered sufficient explanation in refuting them.”
The 1st and 2nd Respondents, by their Affidavit and exhibited documents, have chronicled in a detailed manner, even providing cell phone number of the person that called him, the occurrence of events from his arrest with dates and times and when he was eventually released on 1st May, 2018 around 4:00pm from the 4th and 5th Respondents’ detention cell. In the circumstance, by the Affidavit evidence of the 1st and 2nd Respondents, the 1st and 2nd Respondents had established breach of the 1st Respondent’s Fundamental Rights as enshrined in Section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and therefore have discharged the onus of proof placed on them against the Appellants and I so hold.
See GEORGE ADUMU V. THR CONTROLLER OF PRISONS, FEDERAL PRISONS, ABA & ORS (2013) NWLR (PT. 905) 416, ZAKARI V. IGP (2000)8 NWLR (PT 670) 666 and OLUTOLA V. UNIVERSITY OF ILORIN (2004)18 NWLR (PT 905) 416.
In the case of OKONKWO V. OGBOGU (1996)5 NWLR (PT 449) 420, the Supreme Court of Nigeria in commenting on instigation to arrest and detain held as follows:
“Instigating the arrest and detention of the 1st Respondent was an unlawful act done intentionally without just cause or excuse, and therefore malicious in the legal sense. Malice in this form of action is not to be considered in the sense of spite or hatred against the 1st Respondent but of “malus animus” as denoting that the Appellant was actuated by improper and indirect motives.”
Contrary to the submissions of the learned senior Counsel at paragraphs 3.27-3.34 of the Appellants’ Brief of Argument, although the petition is not exhibited, the facts deposed to in the Affidavit in support of the Originating Motion are weighty. And the learned Senior Counsel himself has admitted that the Appellants were duly served with the Originating Process in the suit by the trial Court but they refused or failed to file any response. The depositions of the 1st and 2nd Respondents at paragraphs 83-88 of the Affidavit in support of their motion, the Appellants upon service ought to have filed a Counter-Affidavit to dispute or challenge facts deposed by the 1st and 2nd Respondents. These depositions cannot be washed away. And more importantly, how the Appellants instigated the arrest and detention of the 1st Respondent on a purely transactional matter that is contractual in nature, that is to say, simple contract.
Now, the trial Court, at pages 174-182 of the Record of Appeal, appraised and evaluated the Affidavit evidence before it and came to a conclusion at pages 183-187 of the Record of Appeal as follows:
“From above, it’s established peradventure that Respondents indeed have used the instrumentation of their office, being public office who are paid with tax payers money to infringe upon the inalienable rights of the Applicants without any iota or element of criminality.
It is a shame that some uniform men allow themselves to be used by the high and mighty in the society for personal civil scores.
Reliefs sought by Applicants succeed in whole. Consequently, the following orders are made against the Respondents.
I therefore enter judgment in favour of Applicant. Consequently, the following declarations are hereby made:
(i) That the general duties of the Nigeria Police Force under Section 4 of the Police Act Cap. P19 LFN, 2004 which shall be employed for the prevention and detection of crime, do not extend to purely contractual relationship/transaction which is outside the criminal compass of the Nigeria Police Force.
(ii) That the unlawful arrest, harassment, humiliation, torture and detention of the 1st Applicant from the 26th of April, 2018 to the 1st of May, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st to 3rd Respondent without any lawful and justifiable cause are unconstitutional illegal wrongful, degrading, oppressive, null and void, and thus constitute infringements of the 1st Applicant’s fundamental right to dignity of human person, right to personal liberty and right to freedom of movement as enshrined under Sections 34(1), 35 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Articles 4, 5, 6 and 12(1) of the African Charter on Human and People’s Right (Ratification and Enforcement) Act, 1983.
(iii) That the awful and illegal arrest and detention of the 1st Applicant from the 26th of April, 2018 to the of May, 2018 by the 4th and 5th Respondents at the instance and instigation of the 1st to 3rd Respondents over a matter which is purely contractual unduly and negatively affected the business operation of the 2nd Applicant by denying the 2nd Applicant the services of the 1st Applicant and thus caused the 2nd Applicant serious losses of business profit.
(iv) The Respondents are hereby jointly and severally, to pay the sum of N500,000,000.00 (Five Million Naira) only being general and exemplary damages and as compensation for the infringement of the 1st Applicant’s fundamental rights to dignity of human person, personal liberty and freedom of movement and also for the losses of business profit of the 2nd Applicant.
(v) Respondents are hereby ordered to tender apology in writing in two national dailies to the Applicants within 7 days of making the order for the unlawful breach of the 1st Applicant’s constitutionally guaranteed fundamental right which by extension gave a bad image of the 2d Applicant’s business.
(vi) An order of perpetual injunction restraining the Respondents whether by themselves, their servants, staff, officers, men and agents wherever and whenever from further unlawfully arresting, detaining, or in any way infringing on the 1st Applicant’s constitutional rights as guaranteed by law is hereby made.”
By the state of Affidavit evidence of the 1st and 2nd Respondents and the exhibited documents, the evaluation of evidence was not perverse and the finding of the trial Court cannot be disturbed by this Honourable Court. Accordingly, the two issues for determination as set out by the Appellants are hereby resolved against them and in favour of the 1st and 2nd Respondents. The appeal therefore lacks merit and it is hereby dismissed.
The decision of the trial Court in Suit No. FCT/HC/CV/1871/2018 delivered on the 31st day of October, 2018 by Y. HALILU, J. is hereby affirmed.
A cost of N100,000.00 is hereby awarded against the Appellants and in favour of the 1st and 2nd Respondents.
STEPHEN JONAH ADAH, J.C.A.: I had the benefit of reading in draft the judgment Just delivered by my learned brother, Danlami Zama Senchi, JCA.
I concur with the reasoning and the conclusion that the appeal is lacking in merit. I, for the same reasons do find the appeal lacking in merit. I do dismiss the appeal and I abide by the consequential orders made thereat. I also abide by the order as to costs.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, Danlami Zama Senchi, JCA. I am in agreement with the reasoning and conclusion reached therein.
This appeal lacks merit and it is hereby accordingly dismissed. I affirm the decision of the Court below in Suit No. FCT/HC/CV/1871/2018 delivered on the 31st day of October, 2018.
I make no order as to costs.
Appearances:
A. A. Ibrahim SAN with him Audu Mohammed Lawal Esq For Appellant(s)
M. C. Nwoye Esq. for the 1st and 2nd Respondents For Respondent(s)
