UMEKWE & ANOR v. TASIE & ORS
(2021)LCN/15793(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Tuesday, June 01, 2021
CA/OW/237/2015
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
1. MR. CHRISTIAN UMEKWE 2. MR. CHIGOZIE CHIBUEZE APPELANT(S)
And
1. JONAH CHIBUEZE TASIE 2. MR. MADUABUCHI CHIBUEZE 3. W/P MERCY (IPO) 4. MR. EFFEM OKON (Ikwuano Divisional Police Station, Isiala Oboro) 5. THE COMMISSIONER OF POLICE, ABIA STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON COUNTER AFFIDAVIT
In this regard, I cannot but refer to what Tobi, JCA (as he then was) stated in respect of counter-affidavit in the case of BEDDING HOLDING LTD V. N.E.C. (1992) 8 NWLR (PT. 260) 428 at 436. It goes thus: –
“A counter-affidavit, true to its name, is expected to counteract, or depose to contrary or opposing facts vis-a-vis the affidavit in support. While a deponent of a counter-affidavit is free to admit certain depositions in the affidavit in support, like a statement of defence in relation to a statement of claim, the main function of a counter-affidavit is to be in opposition to the affidavit in support, as far as the main issues of dispute are concerned…
It is however also the law that the Court is not bound to believe facts deposed to in an affidavit merely because they have not been challenged in a counter-affidavit, for example where the matter is of common knowledge or notoriety, or known to be false. See OJEMEN V. MOMODU (1995) 6 NWLR 583, (CA).
The Evidence Act clearly does not provide for the procedure relating to use or filing of affidavits in interlocutory proceedings such as the instant motion is. However case law has for very long put on ground the practice relating to the filing of affidavits in interlocutory proceedings. And the practice is that unless a counter-affidavit contains new state of facts, an applicant who has filed a supporting affidavit in a motion actually cannot file a further affidavit as of right. In this regard see again paragraph 13.06 on page 219 of Agudas book (supra) where he stated thus: –
“Where a respondent files a counter-affidavit in reply introducing new state of facts, the applicant is free to file a further affidavit in answer without the leave of Court. See Heath v. Wallingford (1865) 12 L.T. 631. PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT THE COURT OF APPEAL IS BOUND BY THE DECISIONS OF THE SUPREME COURT
This Court, by law, is bound by the decisions of the Supreme Court and its own previous decisions (except in specified situations that are clearly not present in the instant appeal). See the cases of OSHO V. FOREIGN FINANCE CORPORATION (1991) LPELR-2801(SC) and BIKO V. AMAECHI (2018) LPELR-45069(CA) amongst many others. I am therefore bound to abide by the position of this Court in the two cases decided by it cited above inasmuch as I know of no Supreme Court decision that has decided to the contrary. Indeed, I am of the considered view that the Appellants in attempting to fly the kite or the supposed “magic wand” of denial of fair hearing and or breach of their right to fair hearing, in the instant case, on the basis of the striking out of their further counter affidavit by the lower Court, have conveniently forgotten that a counter-affidavit is no more than the evidence the party that files the same intends to use in opposing the proceeding before a Court. PER LOKULO-SODIPE, J.C.A.
DEFINITION OF THE TERM “BURDEN OF PROOF”
There is nothing recondite in the “term burden of proof”. Burden of proof having regard to a plethora of decided cases in which the term has been enunciated, has two settled and distinct meanings: (i) the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case; (ii) burden of proof in the sense of adducing evidence usually described as the evidential burden. Thus, while the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof, may oscillate constantly as one scale of evidence or the other preponderates. This is to say that in civil cases, the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-versa as the case progresses. See in this regard the case of OKOYE V. NWANKWO (2014) LPELR-23172(SC) amongst others. PER LOKULO-SODIPE, J.C.A.
THE POSITION OF LAW WHERE A PARTY FAILS TO CHALLANGE A FINDING BY WAY OF AN APPEAL
The position of the law is that where a party does not appeal against the judgment of a Court that affects that party, then he is deemed not to be aggrieved with the said finding. Again, this is because the settled position of the law is that where a party has not challenged a finding by way of an appeal, that finding remains inviolate. See the cases of LEVENTIS TECHNICAL V. PETROJESSICA (1999) 6 NWLR (Pt. 605) 45, (1999) 4 SCNJ 121 and DABO V. ABDULLAHI (2005) LPELR-903(SC) amongst many others. Indeed, situation the Appellants have foisted on the 3rd – 5th Respondents against whom judgment was given against just like the Appellants themselves, is to put them in the awkward position of defending the judgment now on appeal, inasmuch as they (i.e. 3rd – 5th Respondents) have no appeal of their own. This is particularly so as the Appellants decided not to include them as co-appellants or convince them to joined as appellants in the instant appeal. See the cases of EJEALOR V. GOV OF IMO STATE (2017) LPELR-42290(CA) and OZOMARO V. OZOMARO (2014) LPELR-22663(CA) amongst many others. PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 12/9/2014, by the High Court of Justice, Abia State presided over by Hon. Justice I.A. Nwabughogu (hereafter to be referred to as “the lower Court” and “learned trial Judge” respectively).
The instant case was instituted by the 1st and 2nd Respondents on record as Applicants against the Appellants herein, and the 3rd – 5th Respondents as 1st – 5th Respondents in the lower Court, by a “motion on notice” dated 9/7/2014 and filed on 5/8/2014. The motion was brought pursuant to Order II Rules 1-5 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, and Sections 34, 35 and 46 of the Constitution of the Federal Republic of Nigeria 1999 as amended (and hereafter to be simply referred to as “FREPR, 2009” and “the 1999 amended Constitution” respectively).
The motion on notice was accompanied with a supporting affidavit to which exhibits considered to be relevant were attached. The reliefs sought by the 1st and 2nd Respondents (hereafter to be simply referred to as “Respondents” as the other Respondents in the appeal filed no brief of argument; and did not participate at the hearing of the appeal), against the Appellants and the other Respondents (i.e. 3rd – 5th Respondents) as set out in the motion are: –
“1. An order that the arrests, detention and humiliation of the Applicants especially the 2nd Applicant on the 2nd day of July, 2014 and subsequent inhuman and degrading treatment for no lawful reason by the 3rd – 5th Respondents at the instigation and effective goading of the 1st and 2nd Respondents is wrongful in law, unjustifiable, unconstitutional and constitute a breach of their rights to liberty and dignity of their human person.
2. An order of perpetual injunction restraining all the Respondents either by themselves, their agents, privies and servants from further arresting, detaining or in any other manner dehumanizing or harassing the Applicants in relation to the facts founding this application or a crime unknown to law.
3. The sum of N20,000,000.00 (Twenty Million Naira) as compensatory damages against the 1st and 2nd Respondents jointly in the first instance and N5,000,000.00 (Five Million Naira) against the 3rd – 5th Respondents jointly and severally for arresting, detaining and dehumanizing the Applicants especially the 2nd Applicant without lawful cause or justification.”
The 1st and 2nd Respondents (now Appellants) and the other Respondents, (in the action brought by Respondents as Applicants), filed their responses to the supporting affidavit of the motion by which the instant motion was commenced. The Respondents and the Appellants respectively, also filed “further affidavit” and “further counter affidavit”.
In the judgment on appeal, the lower Court stated thus: –
“This is an application for the enforcement of fundamental rights dated the 9th day of July 2014 and filed on 5/8/2014 supported by a statement which contains inter alia the reliefs sought with an affidavit of 19 paragraphs in support with Exhibit A attached thereto. Accompanying the application is a written address.
The applicants also upon the receipt of the counter-affidavits of the respondents filed a further affidavit of 15 paragraphs having attached to it Exhibits A and A1 respectively. The said further affidavit is accompanied by a written address. The 1st and 2nd respondents in opposition to the application filed a counter-affidavit of 21 paragraphs having attached to it Exhibit A. Accompanying the said counter-affidavit is a written address. The 1st and 2nd respondents also filed a “further-counter-affidavit” which is not accompanied by a written address.
On their own part, the 3rd to 5th respondents also filed a counter-affidavit with three Exhibits. The said counter-affidavit is accompanied by a written address.
At the hearing, the respective counsel for the respective parties adopted their respective written addresses. In his oral address, the applicants’ counsel, challenged the competence of the further counter-affidavit of the 1st and 2nd respondents for being not within the contemplation of the provisions of the Fundamental Rights (Enforcement Procedure) Rules (“The Rules”) I.N. IJOMA SAN for the 1st and 2nd respondents found authority for the “further counter affidavit” in Order 6 Rule 2 of the Rules.
Before I proceed with this judgment, I shall determine this issue first. I have gone through the entire provisions of the Rules especially Order 6 Rule 2 thereof relied on by the learned silk, there is no provision under which a respondent can file a “further counter-affidavit” in a fundamental rights proceedings. The provisions of the Fundamental Rights (Enforcement Procedures) Rules requires strict compliance. Indeed where the law has placed the requirement for doing a thing compliance is mandatory. See …” The further-counter affidavit of the 1st and 2nd respondents not being in compliance with the Rules, it is hereby struck out.
I have carefully gone through the application together with the various affidavits and written addresses. I must tread with caution with regard to the exhibits of the applicants and the 1st and 2nd respondents and the issues touching on the matter which is before the Court of appeal.
In an application for the enforcement of fundamental rights, both the applicant and the respondent are laden with burdens:
The applicant must prove that it was the respondent who set the wheel of the police or law in motion against him, while the respondent in (this case the 1st and 2nd respondents) must how reasonable cause for reporting the applicant to the police. See xxx”
The respondents (in this case the 1st and 2nd respondents) must show reasonable cause for reporting the applicants to the police.
It is now trite law that an action will not lie against a person who merely made a report to the police, but where the information to the police is found to be false, the person losses the protection available to him and he will be liable for the damages claimed as a result of the arrest and detention. See …” On the part of the police, the 3rd to 5th respondents herein, they must prove the constitutionality or legality of the arrest and detention – see: …
In this suit, it is not in contest that the applicants were arrested and detained by the 3rd to 5th respondents. It is also not in contest that it was the 1st and 2nd respondents that reported the applicants to the 3rd to 5th respondents. As to the reason for reporting the applicants to the police, at various paragraphs of the counter-affidavit of the 1st and 2nd respondents they deposed thus:
“4. That in answer to paragraph 7 of the affidavit, I aver that on 1/7/2014, the applicants forcibly entered the land of members of Umuebo family and started the building of a concrete house on it and were doing so with the aid of a group of unknown faces whom we suspected to be thugs”.
“15. … the persons the Applicants brought to the land in question are … the said persons were digging foundation and carrying knives shovels and diggers, instead of bible”.
“9. That at the time of the said suit NO: HU/82/75 and up till now the 1st Applicant’s said house which he claimed got burn is a thatch house and it is on the site of this thatch house and other land of Umuebo family … that the Applicants commenced the errection (sic) of concrete cement house…”
At paragraph 8 of their counter-affidavit, the 1st and 2nd respondents alleged that the applicants were violating or flouting the order of the Court.
The 3rd to 5th respondents in justifying the arrest and detention of the applicants deposed thus at paragraph 17(a) of their counter- affidavit”.
“17(a) that on 1/7/2014, the 1st respondent reported to the office (sic) the 4th respondent that the applicants brought in unknown faces into their compound and started digging a building foundation in a piece of land which is in the actual and peaceable possession of the 1st and 2nd respondents without their consent a conduct that could likely cause a breach of the peace in their domain”.
There is nowhere in the counter-affidavit of the respondents where it was shown that either the applicants or the people found with them on the land were violent or threatened violence. Paragraph 15 of the counter-affidavit of the 1st and 2nd confirms that the people who were found with the applicants on the land were job men and were working on the land. Paragraph 9 of the said counter-affidavit also confirms that the applicants were building on the site of their burnt house.
By paragraph 17(a) of the counter-affidavit of the 3rd to 5th respondents what was reported to the police and for which the applicants were arrested and detained was a case of trespass as there was no element of violence or threat of violence.
In the final analysis, I find that the 1st and 2nd respondents had no reasonable cause to report, the applicants to 3rd to 5th respondents. It was an act done intentionally without just cause or excuse. The 1st and 2nd respondents were actuated by improper motive.
I also find that the arrest and detention of the applicants were without legal or constitutional justification.
This suit therefore succeeds and I make the followings orders:
1. The arrest and detention of the applicants especially, the 2nd applicant on the 2nd day of July, 2014 by the 3rd to 5th respondents at the instance of the 1st and 2nd respondents constitute flagrant infractions of their fundamental rights to liberty and dignity of their human person and thus unconstitutional.
2. The Respondents, by themselves their agents, privies and servants whomsoever are hereby perpetually restrained from further arresting, detaining or in any manner whatsoever dealing with the applicants in respect of or concerning the matters giving rise to this application.
3. I hereby award damages assessed at the sum of N1,000,000 (One Million Naira) for the infringement of the rights complained of.” Being aggrieved with the judgment of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court, on 13/10/2014, a notice of appeal bearing the same date. The notice of appeal in question contains 5 grounds of appeal and the said grounds without their respective particulars read thus: –
“GROUNDS OF APPEAL
GROUND ONE (1)
The learned trial Judge erred in law when he struck out the further counter-affidavit filed by the 1st & 2nd Respondents by saying:
I have gone through the entire provisions of the Rules especially Order 6 Rule 2 thereof relied on by the learned silk, there is no provision under which a respondent can file a “further counter-affidavit” in a fundamental rights proceedings. The provisions of the Fundamental. (sic)
GROUND 2
The learned trial Judge erred in law when he misplaced the onus of proof in the case by saying that:
The respondent in (this case the 1st and 2nd respondents) must show reasonable cause of reporting the applicant to the police.
GROUND 3
The learned trial Judge erred in law when he found the 1st – 2nd Respondents liable to the Applicants (sic) claim by his reasoning in his judgment wherein he said:
There is nowhere in the counter-affidavit of the respondents where it was shown that either the applicants or the people found with them on the land were violent or threatened violence.
GROUND 4
The damages awarded against the Respondent (sic) in this case is wrong in law and cannot be supported having regard to the manner of the Applicants claim for damages in this case.
GROUND 5
The learned trial Judge erred in law by the order he made in his judgment wherein he said
The Respondents, by themselves their agents, privies and servants whomsoever are hereby perpetually restrained from further arresting, detaining or in any manner whatsoever dealing with the applicants in respect of or concerning the matters giving rise to this application.”
The relief that the Appellants seeks from this Court, is that this appeal be allowed and that the judgment of the lower Court be set aside.
The appeal was entertained on 3/3/2021, with learned leading counsel, C.N. Nwokorie, adopting and relying on Appellants’ brief of argument dated 22/1/2018 and filed on the same date, in urging this Court to allow the appeal. In the same vein, Nwabueze Nwankwo of counsel, adopted and relied on the brief of argument of the Respondents dated 30/10/2018 and filed on 9/1/2019, in urging the Court to dismiss the appeal. The 3rd – 5th Respondents as earlier stated did not file any brief of argument in the appeal, and were also absent at the hearing of the appeal though they were served with hearing notice in respect of the hearing date of the appeal, on 23/2/2021.
The issues formulated for the determination of the appeal in the brief of argument of the Appellants are:-
“1. Whether the learned trial Judge was right when he struck out the further counter affidavit filed by the Appellants as 1st and 2nd Respondents before the trial Court (Distilled from Ground 1).
2. Whether the learned trial Judge was right when he held that the Appellants as 1st and 2nd Respondents before the trial Court did not show reasonable cause of reporting the Applicants to the Police and thereby misplaced the burden of proof. (Distilled from Ground 2).
3. Whether the learned trial Judge was right when he held that the Appellants as 1st and 2nd Respondents before the trial Court did not show in their counter-affidavit that the Applicants were violent or threatened violence (Distilled from Ground 3).
4. Whether the damages awarded by the learned trial Judge was not wrong in law and cannot be supported having regard to the manner of the Applicants’ claim or relief for damages (Distilled from Ground 4).
5. Whether the learned trial Judge was right when he granted an order perpetually restraining the Respondents therein from dealing with the Applicants in any manner in respect of or concerning the matter giving rise to the application (Distilled from Ground 5).”
Dwelling on the issues for the determination of the instant appeal, the Respondents stated in their brief of argument thus:-
“Though the issues raised for determination by the Appellants are rather prolix, we shall for ease of both reference and sequence adopt same though we shall be seeking the indulgence of your lordships to argue issues Nos. 2 and 3 together and also No. 4 and 5 given their inter relatedness.”
Given the position of the Respondents as re-produced above, the instant appeal necessarily has to be determined against the backdrop of the issues formulated by the Appellants. In this regard, issue 1 which in effect challenges the non-consideration of admissible evidence (in the form of a further counter-affidavit) placed before the lower Court by the Appellants, will be considered first while the remaining issues which question the correctness of the judgment of the lower Court and the appropriateness of the orders made therein by the said Court, will be considered either separately or together as may be considered expedient.
APPELLANTS’ ISSUE 1 – WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE STRUCK OUT THE FURTHER COUNTER-AFFIDAVIT FILED BY THE APPELLANTS AS 1ST AND 2ND RESPONDENTS BEFORE THE TRIAL COURT (DISTILLED FROM GROUND 1).
Dwelling on this issue, the Appellants submitted to the effect that they were justified in law, in filing a further counter-affidavit in the instant case, as the Respondents (i.e. Applicants) filed a further affidavit of 15 paragraphs wherein they introduced several new facts and issues, including the traditional history of the Respondents. It is the stance of the Appellants that the further counter-affidavit of 12 paragraphs they filed, was therefore in order and that the lower Court wrongly struck out the said further counter-affidavit. The Appellants submitted that by the provisions of Order VI Rule 2 of the “FREPR, 2009”, the Courts are enjoined to allow for further affidavits, if they deal with new issues raised in the affidavit of parties. That the essence of the further counter affidavit filed by them (Appellants) was to react to or respond to the new issues raised by the Respondents, before the lower Court. It is the stance of the Appellants that the “FREPR, 2009”, therefore allows any of the parties to use further affidavit in response to new issues raised in a matter. This is more so as the lower Court never made any finding to show that the said further counter affidavit did not respond to the new issues raised by the Respondents in their further affidavit.
Although not conceding the same, the Appellants also submitted that even if Order VI Rule 2 of the “FREPR, 2009” did not make provision for the use of a further counter-affidavit, they were entitled to file the said process, to react to the new issues raised in the further affidavit filed by the Respondents pursuant to the provisions of Order XV of the “FREPR 2009”, which allow the Court or parties to have recourse to the High Court Civil Procedure Rules of the Court, for the time being. The Appellants stated that the applicable Abia State High Court Procedure Rules, allow for the use of further counter-affidavit or further defence, as the case may be. Also stating that the “FREPR, 2009”, is made to guide the Court and not to defeat justice, the Appellants submitted that the rules of Court including the “FREPR, 2009”, was made to guide the Court in the administration of justice and not to defeat the course of justice. That the striking out of their further counter-affidavit which responded to the new issues raised by the Respondents in their further affidavit, by the lower Court, on the ground that the “FREPR, 2009”, did not make provision for the use of further counter-affidavit, amounted to a denial of justice and fair hearing. This is more so as the lower Court relied on the further affidavit of the Respondents which raised new issues, in its judgment but however struck out their own (Appellants’) further counter affidavit, which responded to the new issues therein. That this is a denial of fair hearing which has occasioned them (Appellants) miscarriage of justice. It is the stance of the Appellants that the lower Court would have dismissed the instant suit, if the said further counter affidavit, was not struck out.
Dwelling on this issue in their brief of argument, the Respondents submitted to the effect that the lower Court was not wrong in striking out the further counter-affidavit filed by the Appellants. They relied on the rule of statutory construction to the effect that where the words in a statute are clear, they must be given their ordinary and literal meaning, in aid of their stance that the lower Court rightly struck out the Appellants’ further counter-affidavit. It is also the stance of the Respondents that the provisions of Order VI Rule 2 of the “FREPR 2009”, are very clear and that they provide for (a) the discretion on the part of a Court whether or not to allow the use of further affidavit and (b) that such further affidavit where allowed must deal with fresh matters raised in the counter-affidavit (not further affidavit) of any party to the proceeding. The Respondents submitted that it is very clear from the provisions in question, that the further affidavit referred to in the “FREPR, 2009” strictly relates to a further affidavit that responds to new matters in an already existing counter affidavit. It is the stance of the Respondents that the attempt by the Appellants to extend the clear meaning of the provisions in question to accommodate a further counter affidavit, is both otiose and inapplicable. Furthermore, the Respondents in addition to the case of Ogboriefon v. Ogboriefon (2001) 23 WRN 159, cited by the lower Court in its judgment, cited the case of Mobil Oil Producing Nigeria Unltd v. Monokpo (2004) All FWLR (pt. 195) 575, as deciding that “A Court process which is filed but unknown to Law or Rules of Procedure, is void”. The Respondents submitted that the further counter-affidavit filed by the Appellants, being unknown to law – i.e. the “FREPR, 2009”, (which is sui generis), is void and was rightly struck out by the lower Court. That the vain effort by the Appellants to have recourse to the rather omnibus provision of Order XV of the said “FREPR, 2009”, cannot avail them since there are sufficient provisions in the said “FREPR 2009”, on this issue which obviate reliance on the High Court Rules of Abia State or any other State for that matter. That in any case, even under the Abia State High Court Rules, especially in Orders 39 and 40, dealing with interlocutory application, there is no provision for the filing of a further counter-affidavit. The Respondents urged this Court to resolve this issue against the Appellants.
The relevant provisions of the “FREPR, 2009” relating to the affidavit to be filed in a proceeding commenced thereunder and the use to which such affidavits should be put in my considered view can be better appreciated from the provisions the Rules in question set out hereunder: –
Order 2 – Commencement of action
Rule 1
…
Rule 2
…
Rule 3
An application shall be supported by a statement setting out the name and description of the applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made.
Rule 4
…
Rule 5
Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application.
Rule 6
Where the respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.
Rule 7
The applicant may on being served with the Respondent’s Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit.
Suffice it to say that the question as to whether it is proper or not for a party in a proceeding brought under the “FREPR, 2009”, has before now received judicial exposition in at least two cases decided by this Court. The first of the cases, is that of IGP V. EZE (2017) LPELR-42923(CA) decided by this very Court on 5/6/2017. Therein, the Court in dwelling on the procedure for commencing an action for the enforcement of a fundamental right, stated per Lokulo-Sodipe, JCA; thus: –
“It is my considered view that the FREPR, 2009 specifically stipulated or put in place a special or unique procedure for the enforcement by an aggrieved person of his fundamental right. For this purpose the Rules clearly set out the types of affidavit that may be filed by parties in a fundamental right proceedings. Aside from a supporting affidavit setting out the facts relied upon by an applicant and which must accompany an application for the enforcement of fundamental right, the only other affidavit that the applicant may file is a further affidavit in conjunction with his reply on point of law. On the other hand, the only affidavit a respondent who intends to oppose the application may file is a counter affidavit in conjunction with a written address. (See Order II of the Rules). As it has been said hereinbefore, fundamental right proceedings are basically to be decided on affidavit evidence and the affidavit requirements in a fundamental right proceedings as disclosed in the applicable Rules in my considered view are strictly in keeping with the position of the law regarding the use of affidavit evidence in civil proceedings. In this regard, I cannot but re-produce what I said in relation to affidavit evidence in the ruling of this Court delivered on 9/12/2016 in APPEAL NO. CA/OW/8M/2015 SIR GOODLUCK EBERECHUKWU OSUJI & ORS. V. BARRISTER TONY UROEGBULAM & ORS. Re-produced hereunder is what I said:-
…
The Evidence Act, 2011 contains copious provisions relating to affidavits. See Sections 107 – 120 thereof. The Act in Section 107 specifically provides thus:- …”
…
It is in my considered view clear from the above, that affidavit evidence is a form of documentary evidence and this view would appear to find support in what Aguda stated in his book Law and Practice relating to Evidence in Nigeria, 2nd Edition, at paragraph 13.03 on page 217 in respect of proof of facts by affidavit. It goes thus: –
Proof of facts by affidavit
As we noted in the last chapter, one of the exceptions to the rule that in all proceedings in Court, is that a fact may be proved by affidavit evidence. A person who deposes to some facts in a Court proceeding becomes ipso facto a witness in that proceeding (Lamidi Busari and Ors v. Yinusa Goriola Oseni and Ors (1992) 4 NWLR 557, at 581 CA) and hence can be cross-examined upon an order by the trial judge.
Although there is no rule regulating the cases in which the Court may order proof of facts by affidavits it is not usual for the Court to decide substantive actions on affidavit alone…
Similarly, all interlocutory applications made in the course of a Court proceeding are usually based upon sworn affidavits. Indeed oral evidence will not as a rule be heard in support of any motion unless by leave of the Court…
Given the nature of affidavit evidence as a form of documentary evidence, the position of the law is that any fact deposed to therein that is not controverted, challenged or denied will be taken as admitted. It is in a counter-affidavit that the party that wishes to deny, controvert or challenge facts contained in an affidavit does so. In this regard, I cannot but refer to what Tobi, JCA (as he then was) stated in respect of counter-affidavit in the case of BEDDING HOLDING LTD V. N.E.C. (1992) 8 NWLR (PT. 260) 428 at 436. It goes thus: –
“A counter-affidavit, true to its name, is expected to counteract, or depose to contrary or opposing facts vis-a-vis the affidavit in support. While a deponent of a counter-affidavit is free to admit certain depositions in the affidavit in support, like a statement of defence in relation to a statement of claim, the main function of a counter-affidavit is to be in opposition to the affidavit in support, as far as the main issues of dispute are concerned…
It is however also the law that the Court is not bound to believe facts deposed to in an affidavit merely because they have not been challenged in a counter-affidavit, for example where the matter is of common knowledge or notoriety, or known to be false. See OJEMEN V. MOMODU (1995) 6 NWLR 583, (CA).
The Evidence Act clearly does not provide for the procedure relating to use or filing of affidavits in interlocutory proceedings such as the instant motion is. However case law has for very long put on ground the practice relating to the filing of affidavits in interlocutory proceedings. And the practice is that unless a counter-affidavit contains new state of facts, an applicant who has filed a supporting affidavit in a motion actually cannot file a further affidavit as of right. In this regard see again paragraph 13.06 on page 219 of Agudas book (supra) where he stated thus: –
“Where a respondent files a counter-affidavit in reply introducing new state of facts, the applicant is free to file a further affidavit in answer without the leave of Court. See Heath v. Wallingford (1865) 12 L.T. 631.
In effect the position of the law relating to the filing of affidavit evidence is that there is only need to file a further affidavit in a civil proceeding as of right when there are new facts in a counter affidavit. In other words, filing of affidavits in an interlocutory proceeding closes or comes to an end upon the filing of counter-affidavit (where the counter-affidavit contains no new deposition of facts) and upon the filing of a further affidavit (where the counter-affidavit deposes to new facts that call for a response from an applicant). It follows therefore that if either the applicant in a motion (having filed a further affidavit in response to new facts in a counter-affidavit as of right) or respondent considers it expedient to file further affidavit evidence in an interlocutory proceedings, any such further affidavit however styled or described cannot be filed and used in the proceeding without the leave of Court being first procured. …”
The rules applicable to fundamental right proceedings clearly do not provide for the filing of further counter-affidavit by the Appellants.”
The second of the cases, is that of CHIMA V. FBN (2017) LPELR-43652(CA) decided on 12/7/2017, wherein this Court stated thus: –
“The Fundamental Rights Enforcement is a constitutional issue. Rules were made to facilitate the hearing of such issues of infraction with dispatch or minimum delay. This informed the laying out of the overriding objectives of the said Enforcement Rules in preamble 3 to the Fundamental Rights (Enforcement Procedure) Rules 2009. Overriding objective (g) is helpful. It reads: (g). Human rights suits shall be given priority in deserving cases. Where there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency. This then gives the Court the enablement to fast track proceedings in right enforcement at every level. This objective to fast track notwithstanding, the rules must be obeyed and followed because the Court is the home of due process and justice must be dispensed according to the law. The integrity of our proceedings is majorly judged by the much of due process we deploy into it. Under the 2009 Rules for Enforcement of Fundamental Rights Order 4deals with how to take steps for enforcement of a fundamental right. Order II can be captured for us to see clearly and perceive both the letters and the spirit of the law. It runs thus: ORDER II – COMMENCEMENT OF ACTION 1. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress: provided that where the infringement occurs in a state which has no Division of the Federal high Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate. 2. An application for the enforcement of the fundamental right may be made by any originating process accepted by the Court which shall, subject to the provisions of these Rule, lie without leave of Court. 3. An application shall be supported by a statement setting out the name and description of the Applicant, the relief sought, the grounds upon which the reliefs are sought, and supported by an affidavit setting out the facts upon which the application is made. 4. The affidavit shall be made by the Applicant, but where the Applicant is in custody or if for any reason is unable to swear to an affidavit, the affidavit shall be made by a person who has personal knowledge of the facts or by a person who has been informed of the facts by the Applicant, stating that the Applicant is unable to depose personally to the affidavit. 5. Every application shall be accompanied by a Written Address which shall be succinct argument in support of the grounds of the application. 6. Where the Respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit. 7. The Applicant may on being served with the Respondent’s Written Address, file and serve an address on points of law within 5 days of being served, and may accompany it with a further affidavit. The Rules set down the steps to be taken for the hearing of the application. The Respondents under the Rules have no right of further reply after filing their counter affidavits. The 1st and 2nd Respondents in the instant case put in their counter affidavit which the Appellant responded to by the further affidavits at the lower Court. It is the further affidavit of the Appellant that the Respondents were replying to in their further counter-affidavits. There is nowhere the Rules permit this so those two processes and the backup addresses are not known to the Rules. They are both incompetent and ought to be and are hereby struck out.”
This Court, by law, is bound by the decisions of the Supreme Court and its own previous decisions (except in specified situations that are clearly not present in the instant appeal). See the cases of OSHO V. FOREIGN FINANCE CORPORATION (1991) LPELR-2801(SC) and BIKO V. AMAECHI (2018) LPELR-45069(CA) amongst many others. I am therefore bound to abide by the position of this Court in the two cases decided by it cited above inasmuch as I know of no Supreme Court decision that has decided to the contrary. Indeed, I am of the considered view that the Appellants in attempting to fly the kite or the supposed “magic wand” of denial of fair hearing and or breach of their right to fair hearing, in the instant case, on the basis of the striking out of their further counter affidavit by the lower Court, have conveniently forgotten that a counter-affidavit is no more than the evidence the party that files the same intends to use in opposing the proceeding before a Court.
This being my view, the party that filed a counter-affidavit cannot properly go ahead to file a further counter-affidavit in response to a further affidavit filed to his counter-affidavit on the basis of new issues that were allegedly brought up in the further affidavit. Also, to the extent that the Appellants have been afforded the right to file a counter-affidavit by the “FREPR, 2009” applicable to the instant case, and a process which they actually filed, their effort to introduce the issue of the breach of their right to fair hearing because their further counter-affidavit, is clearly fictitious and untenable. In my considered view, what the Appellants should have done in a situation where they were of the view that there was nothing in their counter-affidavit that warranted the filing of a further affidavit by the Respondents, was to have raised objection to the use (admissibility) of the said further affidavit by the Respondents at the hearing before the lower Court (affidavits being evidence) and not to have willy-nilly filed a further counter-affidavit in response to the said further affidavit, and leave the said Court to make a finding on the matter/issue. The Appellants never took a position before the lower Court that the counter-affidavit they filed did not raise any new issue calling for the filing of a further affidavit. This being the case, they cannot properly have any grouse against the use of the further affidavit filed in the instant action and which they have stated, the lower Court used. The position of the law is that a party who did not object to the admissibility of a particular piece of evidence at the point it is being tendered or adduced, cannot turn round to complain about the use made of it by a Court, unless such evidence is inadmissible by or in law, in the first place. In any event, as the filing of a further affidavit is recognised by the “FREPR, 2009” and as the Appellants have no ground of appeal challenging the reliance placed on the further affidavit filed by the Respondents, any argument tending to show that the lower Court committed any infraction of the law in relation to the said further affidavit, has no legal basis.
Flowing from all that has been said hereinbefore, is that Appellants’ issue 1 must be and is hereby resolved against them and in favour of the Respondents.
Issues 2 and 3 formulated for the determination of the appeal by the Appellants in my considered view question basically the correctness of the decision of the lower Court finding them liable for violating the Respondents’ fundamental right as alleged in the instant case. The correctness of the decision of the lower Court in this regard is being questioned (i) on the ground that the lower Court was wrong in its conclusion or finding that the Appellants did not show reasonable cause for reporting the Respondents to the Police and that the said Court thereby misplaced the burden of proof and (ii) on the ground that the lower Court was wrong in its finding that the Appellants did not show in their counter-affidavit that the Respondents were violent or threatened violence.
I have read the submissions of the Appellants and Respondents respectively on the above-mentioned issues and I do not see any useful purpose it will serve to engage in any other review of the submissions of the parties save as has been done above, given the fact that the submissions of the parties are slanted in or to favour their respective positions. All that I consider as expedient to do in the instant appeal, is to refer to the relevant paragraphs of the affidavits of the parties, in order to determine whether or not the lower Court was correct in its findings, relating to the complicity or involvement of the Appellants in the breach of the fundamental rights of the Respondents and eventual decision in the case.
The Respondents as it has been stated hereinbefore, instituted the instant action for the enforcement of their fundamental rights. In the supporting affidavit of the motion by which the instant case was commenced, the Respondents deposed to the effect (i) that their mud house in the village was burnt or gutted by fire on or about 17/2/2014; (ii) that they were engaged in the re-building of the burnt mud house with cement which they had mixed, when the Appellants in the company of two others (a man and a woman) that introduced themselves as Police Officers, came to the said site and served the 2nd Applicant (now 2nd Respondent) with a paper requiring him to report at the police station and also instructed or ordered him to stop work after using the cement already mixed for the day’s construction work; (iii) that at the police station the IPO – 3rd Respondent, asked whether the land on which the building was been erected, belonged to the Respondents or to the public/community and that the said IPO also informed the 2nd Respondent that the Appellants lodged a report that the Respondents brought thugs to kill them; (iv) that the IPO was informed that the parcel of land on which the land was being built was the Respondents’ land and that the old house that was burnt was standing on the same parcel of land whereat they (Respondents) were now putting up a new structure and that the IPO was also informed by the 2nd Respondent that he never brought thugs to kill the Appellants. In the supporting affidavit of the motion by which the instant action was commenced, the Respondents further gave details of how they were detained, how the 3rd – 5th Respondents demanded for bribe of N10,000.00 for their bail, and the role the Appellants played at the Police Station.
In their counter-affidavit, the Appellants deposed to the effect (i) that on 1/7/2014 the Respondents entered the land of Umuebo family and started building a concrete house thereon, and that the Respondents were doing this with the aid of a group of unknown faces who they (Appellants) suspected to be thugs; (ii) that as they (Appellants) were scared, they did not challenge the Respondents physically as doing so would have caused a breach of peace, and therefore reported the Respondents’ conduct to the Police. The Appellants further narrated the facts of the case in respect of which the Respondents took sides with the adversaries of the Umuebo family and which case ended in favour of Appellants both at the High Court and at the Court of Appeal. That at the Court of Appeal, the Court made an order that “no new houses of any description shall be built on the land in the suit without the plaintiffs (sic) permission forthwith”. Also, in their counter-affidavit, the Appellant in paragraphs 9, 10, 15 and 20, deposed as follows:-
“Paragraph 9
That at the time of the said Suit No. HU/82/75 and up till now the 1st Applicant’s house which he claims got burnt is a thatch house, and it is on the site of this thatch house and other land of the Umuebo family of the 1st and 2nd Respondents (which was subject of Suit No. HU/82/75 aforesaid) that the Applicants commenced the erection of a concrete cement house which made the Umuebo family of the 1st and 2nd Respondents to report them to the Police as aforesaid.
Paragraph 10
That the 1st Applicant was an ardent supporter of the defendants in the said Suit No. HU/82/75, whereby he held the view along with the defendants on record in Suit No. HU/82/75 aforesaid that the land, the subject of the above Suit, (which includes the site of the said thatch house of the 1st Applicant) does not belong to the 1st and 2nd Respondents Umuebo family.
Paragraph 15
That it is not true as averred in paragraph 12 of the affidavit that the persons the Applicants brought to the land in question are Church members, the said persons were digging foundation and carrying knives, shovels and diggers, instead of the Bible.
Paragraph 20
That I have been informed by my counsel Dr. I.N. Ijiomah, SAN and I verily believe him that the 1st and 2nd Respondents and members of their Umuebo family merely exercised their constitutional right by reporting the Applicants criminal conduct to the police.”
The 3rd – 5th Respondents apparently filed a counter-affidavit at the lower Court and the lower Court apparently considered the same in evaluating the evidence in the instant case to reach its decision. I must however say that in the records of appeal “at my disposal” and which ex-facie was compiled by the Appellants, the counter-affidavit of these Respondents is not included therein. I advisedly used the words “at my disposal” because it might be that it is only in the records of appeal, I am now using, that that the said counter affidavit is not included; and that it is included in the other copies of the records compiled and transmitted by the Appellants. However, as it is not my duty to go searching for a process that ought to have been included in the records of appeal, I consider it expedient to remain bound by what is contained in the judgment of the lower Court as contained in the records of appeal. Now, re-produced hereunder again, is what the lower Court said in respect of burden of proof on each set of Respondents as it were, before it in the instant case: –
“I have carefully gone through the application together with the various affidavits and written addresses. I must tread with caution with regard to the exhibits of the applicants and the 1st and 2nd respondents and the issues touching on the matter which is before the Court of appeal.
In an application for the enforcement of fundamental rights, both the applicant and the respondent are laden with burdens:
The applicant must prove that it was the respondent who set the wheel of the police or law in motion against him, while the respondent (in this case the 1st and 2nd respondents) must show reasonable cause for reporting the applicant to the police. See …”
The respondents (in this case the 1st and 2nd respondents) must show reasonable cause for reporting the applicants to the police.
It is now trite law that an action will not lie against a person who merely made a report to the police, but where the information to the police is found to be false, the person losses the protection available to him and he will be liable for the damages claimed as a result of the arrest and detention. See … On the part of the police, the 3rd to 5th respondents herein, they must prove the constitutionality or legality of the arrest and detention – see:…
In this suit, it is not in contest that the applicants were arrested and detained by the 3rd to 5th respondents. It is also not in content (sic) that it was the 1st and 2nd respondents that reported the applicants to the 3rd to 5th respondents. As to the reason for reporting the applicants to the police, at various paragraphs of the counter-affidavit of the 1st and 2nd respondents they deposed thus:
“4. That in answer to paragraph 7 of the affidavit I aver that on 1/7/2014, the applicants forcibly entered the land of members of Umuebo family and started the building of a concrete house on it and were doing so with the aid of a group of unknown faces whom we suspected to be thugs”.
“15. … the persons the Applicants brought to the land in question are … the said persons were digging foundation and carrying knives shovels and diggers, instead of bible”.
“9. That at the time of the said suit no: HU/82/75 and up till now the 1st Applicant’s said house which he claimed got burnt is a thatch house and it is on the site of this thatch house and other land of Umuebo family … that the Applicants commenced the erection (sic) of concrete cement house…”
At paragraph 8 of their counter-affidavit, the 1st and 2nd respondents alleged that the applicants were violating or flouting the order of the Court.
The 3rd to 5th respondents in justifying the arrest and detention of the applicants deposed thus at paragraph 17(a) of their counter- affidavit”.
“17(a) that on 1/7/2014, the 1st respondent reported to the office (sic) the 4th respondent that the applicants brought in unknown faces into their compound and started digging a building foundation in a piece of land which is in the actual and peaceable possession of the 1st and 2nd respondents without their consent a conduct that could likely cause a breach of the peace in their domain”.
There is nowhere in the counter-affidavit of the respondents where it was shown that either the applicants or the people found with them on the land were violent or threatened violence. Paragraph 15 of the counter-affidavit of the 1st and 2nd respondents confirms that the people who were found with the applicants on the land were job men and were working on the land. Paragraph 9 of the said counter-affidavit also confirms that the applicants were building on the site of their burnt house.
By paragraph 17(a) of the counter-affidavit of the 3rd to 5th respondents what was reported to the police and for which the applicants were arrested and detained was a case of trespass as there was no element of violence or threat of violence.
In the final analysis, I find that the 1st and 2nd respondents had no reasonable cause to report, the applicants to 3rd to 5th respondents. It was an act done intentionally without just cause or excuse. The 1st and 2nd respondents were actuated by improper motive.
I also find that the arrest and detention of the applicants were without legal or constitutional justification.
This suit therefore succeeds and I make the followings orders.…”
There is nothing recondite in the “term burden of proof”. Burden of proof having regard to a plethora of decided cases in which the term has been enunciated, has two settled and distinct meanings: (i) the burden of proof as a matter of law and the pleadings usually referred to as legal burden or the burden of establishing a case; (ii) burden of proof in the sense of adducing evidence usually described as the evidential burden. Thus, while the legal burden of proof is always stable or static, the burden of proof in the second sense i.e. evidential burden of proof, may oscillate constantly as one scale of evidence or the other preponderates. This is to say that in civil cases, the burden of proof in the sense of establishing the case initially lies on the plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendants and vice-versa as the case progresses. See in this regard the case of OKOYE V. NWANKWO (2014) LPELR-23172(SC) amongst others. I am of the considered view having regard to the depositions in the supporting affidavit of the Respondents vis-à-vis those in the counter-affidavit of the Appellants, that the Appellants having not denied that they were the ones who went to meet or confront the Respondents at the site whereat they were building and whereat the Respondents and those with them were engaged in building construction with obviously appropriate building implements, it was for them (Appellant) to establish before the lower Court how the presence of the Respondents constituted an offence or the possible breach of the peace in respect of which they were arrested and detained. The 3rd – 5th Respondents did not demonstrate before the lower Court that they conducted any investigation at all into the matter reported by the Appellants that warranted the invitation of the Respondents to the Police Station and their consequent detention, even if they were later released on bail. The burden of proof in this case was clearly on the Appellants to have proved the basis of their suspicion that the people with the Respondents were thugs and that they were likely to engage in any act that would have amounted to breach of peace if they were not challenged and it must be noted that the Appellants never suggested that the Respondents did anything to them before they went to lodge a complaint of the likelihood of breach of peace against the Respondents. The Appellants in my considered view and having regard to the depositions in their counter-affidavit and particularly the depositions therein that have been re-produced in this judgment, simply decided to escalate an alleged civil case of trespass (as rightly found by the lower Court) to one of criminality. The Appellants in my considered view, also simply set out to enforce an alleged order of perpetual injunction in respect of the land on which the Respondents were building against the said Respondents, using the Police. The Appellants being no strangers to land litigation, should have known that one does not enforce the perceived violation of an order of injunction in respect of land or indeed any matter by using or involving the Police in the enforcement of such violation except pursuant to an order of a Court of competent jurisdiction finding the violation established which is a long way of saying that one first has to originate a contempt proceeding and which has to end in his favour before the majesty of the law invites the Police into the matter, for enforcement. The use to which the Appellants decided to put the Police, given the affidavit evidence placed before the lower Court in the instant case, in my considered view shows that the Appellants did not only make a baseless complaint to the Police, but made a complaint that was designed to interfere with the exercise by the Respondents of their perceived right over the parcel of land which they believed to be theirs. It is the hidden reason or motive imbedded in the complaint that rendered it, not to be a harmless complaint as the Appellants are now arguing that their complaint was. It was a complaint made mala fide. The 3rd – 5th Respondents never appealed against the judgment of the lower Court that found them wrong to have arrested and detained the Respondents as a result of the complaint lodged against the said Respondents by the Appellants. The position of the law is that where a party does not appeal against the judgment of a Court that affects that party, then he is deemed not to be aggrieved with the said finding. Again, this is because the settled position of the law is that where a party has not challenged a finding by way of an appeal, that finding remains inviolate. See the cases of LEVENTIS TECHNICAL V. PETROJESSICA (1999) 6 NWLR (Pt. 605) 45, (1999) 4 SCNJ 121 and DABO V. ABDULLAHI (2005) LPELR-903(SC) amongst many others. Indeed, situation the Appellants have foisted on the 3rd – 5th Respondents against whom judgment was given against just like the Appellants themselves, is to put them in the awkward position of defending the judgment now on appeal, inasmuch as they (i.e. 3rd – 5th Respondents) have no appeal of their own. This is particularly so as the Appellants decided not to include them as co-appellants or convince them to joined as appellants in the instant appeal. See the cases of EJEALOR V. GOV OF IMO STATE (2017) LPELR-42290(CA) and OZOMARO V. OZOMARO (2014) LPELR-22663(CA) amongst many others. Flowing from all that has been said hereinbefore, is that I find the lower Court to have properly invoked the burden of proof in the instant case in the manner it did in its judgment and also that the said Court rightly found the Appellants and the 3rd – 5th Respondents not to have discharged the said burden of proof imposed on them by law in the instant case. Accordingly, issues 2 and 3 formulated for the determination of the instant appeal are resolved against the Appellants and in favour of the Respondents.
Issues 4 and 5 of the issues formulated by the Appellants for the determination of the appeal raises the question as to whether the damages awarded by the lower Court was proper in law and can be supported having regard to the manner in which the Respondents couched their claim or relief for damages. Issue 5, on the other hand questions the appropriateness of the order of perpetual injunction granted the Respondents having regard to the manner in which it is couched.
Dwelling on their issue 4, the Appellants in the main submitted that it was wrong of the lower Court to have granted a lump sum as damages against them (Appellants) and the 3rd – 5th Respondents, particularly as the Respondents (i.e. Applicants) set out the damages they sought from each set of the Respondents before the lower Court. It is the stance of the Appellants that the lower Court having regard to the damages it awarded, made an award different from that sought by the Respondents and never claimed by the said Respondents. This is because the said Court never specified which of the heads of damages it granted the Respondents. In other words, that the lower Court should have indicated whether it is the damages claimed against them (Appellants) it granted or whether it was the damages claimed against the 3rd – 5th Respondents, it granted. That the order of damages made by the lower Court amounted to granting a relief not claimed by the Respondents. It is the stance of the Appellants that the lower Court can only deal with the reliefs of the parties as presented or claimed and cannot proceed to award damages, which have the effects of amending the said reliefs. That the lower Court has no power to amend the reliefs sought by a party suo motu. It is also the case of the Appellants that the damages awarded by the lower Court is excessive unwarranted and not justified. That there was no yardstick for awarding such a huge sum of money as damages when the Respondents’ rights were never breached by them (Appellants). This is because the Respondents were released within 24 hours. That the award of N1,000,000.00 was therefore, excessive and not justified.
Dwelling on their issue 5, and having set out the perpetual injunction granted by the lower Court, the Appellants stated that the matter which gave rise to the instant action is land dispute between them and the Respondents. The Appellants submitted that it is trite law that enforcement of fundamental rights proceedings, should not be used as a means of settling issues of ownership of land between parties. That applications for the enforcement of fundamental rights are only used to enforce those rights provided under Chapter IV of the amended 1999 Constitution. That the implication of the order of perpetual injunction granted by the lower Court, is that the Appellants, cannot deal with or question the Respondents’ conduct over the land in question in perpetuity. That the said order of perpetual injunction does not relate to the breach of any fundamental rights provided under Chapter IV of the amended 1999 Constitution. That the said order of perpetual injunction can only be made in an action for declaration of title to land and that the lower Court lacks the jurisdiction to make such order in the proceedings it entertained and this Court was urged to so hold.
Dwelling on Appellants’ issue 4, the Respondents submitted that it will be stretching the argument to an absurdity to contend that because the damages awarded did not classify the set of the Respondents they claimed against, then the same is tantamount to amending the reliefs sought by them. That the law is very clear as to the nature of damages that can be awarded in a fundamental right enforcement action and it is immaterial the manner in which same is couched by an applicant so long as it is in conformity with the enabling law in order to compensate for infringement of any of the stipulated rights. It is the stance of the Respondents that position of the Appellants on the damages awarded, is more of semantics. That the propriety of the award is clear as the damages awarded was within what was claimed and against the persons and authority found by the lower Court to have unlawfully detained the Applicant.
Dwelling on the quantum of damages awarded, the Respondents submitted to the effect that it is settled law that an appellate Court can only interfere with the amount of damages awarded by the trial Court, where it is established that in making the award, the Court proceeded on wrong principles or that the award is unjust. It is the stance of the Respondents that in the instant case, the Appellants have not shown that the principle followed in reaching the award made by the lower Court is inconsistent with Section 35(6) of the amended 1999 Constitution or is unjust in the light of the evidence before the said Court but rather they have argued merely academically that the award does not accord mathematically, with the manner in which the relief was couched.
Dwelling on Appellants’ issue 5, the Respondents submitted that the Appellants have misconceived the order made by the lower Court, and that this has arisen ostensibly out of the failure of the Appellants to relate the order to the issues before the Court or put simply, the application before the Court. It is an inveterate principle of interpretation of documents, that it must be taken as a whole and not for a party to extract or choose which part of the document to construct. That it is trite in fundamental rights matter what gives rise to the application for enforcement of rights are the breaches of any of the rights enshrined in Chapter 4 of the amended 1999 Constitution and that no other or any other cause extraneous to these are enforceable under the provisions. That it is therefore clear that matter giving rise to this application as used both in the claim and judgment order refer to the incident of arrest, detention and consequent breaches of rights that gave rise to the suit for enforcement and nothing more. That this is borne out by the grounds founding the application and the facts as deposed to in the supporting affidavit. That it cannot by any stretch of imagination refer to the land dispute in or subject matter of Suit No. HU/82/75. This is because it is clear from the depositions that that there is no dispute between the parties in respect of the land and as the Respondents were not parties to any such suit.
I have given deep consideration to the submissions of parties in respect of the award of damages made by the lower Court in favour of the Respondents. True it is that the claims or reliefs sought by the Respondents read thus:-
“The sum of N20,000,000.00 (Twenty Million Naira) as compensatory damages against the 1st and 2nd Respondents jointly in the first instance and N5,000,000.00 (Five Million Naira) against the 3rd – 5th Respondents jointly and severally for arresting, detaining and dehumanizing the Applicants especially the 2nd Applicant without lawful cause or justification.”
I am however not at one with the Appellants that the manner in which the lower Court made the monetary award in favour of the Respondents amounted to amending the reliefs sought by the said Respondents and or tantamount to awarding the said Respondents a relief not claimed by them. This is because, I consider the Appellants as not appreciating the fact that the lower Court could not but have made the award of damages in the manner it did, against the backdrop of the following findings and order it made prior to the award of damages. The said findings and orders read: –
“In the final analysis, I find that the 1st and 2nd respondents had no reasonable cause to report, the applicants to 3rd to 5th respondents. It was an act done intentionally without just cause or excuse. The 1st and 2nd respondents were actuated by improper motive.
I also find that the arrest and detention of the applicants were without legal or constitutional justification.
This suit therefore succeeds and I make the followings orders:
1. The arrest and detention of the applicants especially, the 2nd applicant on the 2nd day of July, 2014 by the 3rd to 5th respondents at the instance of the 1st and 2nd respondents constitute flagrant infractions of their fundamental rights to liberty and dignity of their human person and thus unconstitutional.”
2. …
3. I hereby award damages assessed at the sum of N1,000,000 (One Million Naira) for the infringement of the rights complained of.”
A Court is not a zombie and is not expected to let certain and particularly inconsequential misdeeds or omissions of parties that do not affect the competence of an action prevent it from doing that which is needful, or in the interest of justice. It is against this backdrop that one can easily explain why many lapses committed in proceedings before a Court have always been overlooked at various times. For example, no Court in this country will refuse to entertain a motion due to the failure to state the particular Order and Rule of Court, under which it has been brought; or to strike out an appeal simply because an appellant did not specifically state the relief(s) he/she seeks in the notice of appeal upon which the appeal in question is erected or founded. See in this regard the case of UCHENDU V. OGBONI (1999) LPELR-3287(SC) wherein the Supreme Court stated thus: –
“Let me dispose of issue 2 first. The first aspect of the argument of the 1st set of appellants on this issue goes like this: the motion paper upon which the prayer for joinder of parties was sought did not indicate which rule of Court was relied on. That obviously, in my view, is not a strong point. It is true that a particular rule of Court or law under which a motion is brought is generally stated on the motion paper. But failure to do this will neither make the motion incompetent nor the order granted upon the motion invalid, so long as there exists a rule or law which can back up the motion. This is elementary sense of justice which needs no authority. But see Onea v. Egbuchi (1970-71) 1 ECSLR 80.…”
Also see the case of IGP V. EZE (supra) wherein this Court per Lokulo-Sodipe, JCA stated thus: –
“In the amended notice of appeal one Elder Mike E.N Anigboke who was described as 8th Respondent/Respondent in the original notice of appeal was dropped as a party in the appeal. Also the amended notice of appeal unlike the original notice of appeal did not set out any relief which the Appellants seek from this Court. I cannot but say that given this lapse (i.e. non-specification of any relief being sought in the appeal), my initial stance was that it was not worth the time and energy the Court usually puts into writing a judgment to proceed with the consideration on the merit of an appeal in which no relief is claimed. That is to say that I was initially inclined to strike out the appeal without more on the basis of the defect in the amended notice of appeal as no relief was claimed therein. However, I see no need for this, being guided by the decision of the Supreme Court in the case of KATTO V. CBN (1991) NSCC 736 wherein Akpata, JSC; stated thus: –
“It is the case for the appellant, going by the fourth issue that since the defendant in its notice of appeal to the Court of Appeal did not seek any specific relief, the Court of Appeal was wrong to have allowed the appeal.
Order 3, Rule 2(1) of the Court of Appeal Rules 1981 provides:
All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the Registry of the Court below which shall set forth the grounds of appeal, shall state whether the whole or party only of the decision of the Court below is complained of (in the latter case specifying such part) and SHALL state also the EXACT nature of the relief sought….. In his notice of appeal to the Court of Appeal, the defendant inserted erroneously in the column for the relief sought such further relief or reliefs as this Honourable Court shall deem fit and proper to make in the circumstance. Mr. Akinyeye submitted that by Order 3, Rule 2(1), it is mandatory for an appellant to state the exact nature of the relief sought and argued that the purported relief prayed for by the defendant was for a consequential order which did not entitle it to the relief granted by the Court of Appeal. In this regard he cited the case of Ekpenyong & Ors. v. Nyong & Ors. (1975) 2 S.C. 71 at page 80 to the effect that the Court is without the power to award to a claimant that which he did not claim. It was thus the case for the appellant that the appeal of the defendant to the Court of Appeal was incompetent since in essence no relief was sought.
It is true that by Order 3 Rule 2(1) an appellant shall state also the exact nature of the relief sought. The use of the word shall tend to give the impression that it is mandatory or imperative to specify the exact nature of the relief sought. Generally the term shall is a word of command and denotes obligation and gives no room to discretion. It imposes a duty. The term is however sometimes construed as merely permissive or directory to carry out the legislative intention, particularly in cases where its being construed in mandatory sense will bestow no right or benefit to anyone. When construed as being permissive or directory, it carries the same meaning as the word may. As stated in the case of Liverpool Bank v. Turner (1860) 30 L.J. Ch. 379 to 381 (cited by Craies in his Treatise of Statute Law 4th Edition, page 233): –
No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the Statute to be construed.
As mandatory rules of Courts are not as sacrosanct as mandatory statutory provisions, Courts of justice are more inclined to regard as directory or permissive any provision in Rules of Court which appears mandatory, if it is implicit in the provision in question or if combination of other provisions with the provision in question so dictates, or if the ends of justice demand that it be so construed.
As stated by Oputa, J.S.C. in Oloba v. Akereja (1988) 3 N.W.L.R. (part 84) 508 at page 528, all Rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rule compliance with which will lead to outright injustice. It is implicit in Order 3, Rule 23 of the Court of Appeal Rules that the order the Courts has power to make is not always dictated by the relief specifically sought by the appellant and that Order 3, Rule 2(1) is only directory in this wise. Order 3 Rule 23 reads:
The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.
This Rule clearly shows that the case of Ekpenyong v. Nyong (supra) is inapplicable to the situation in this case. Rules of Court generally no doubt are to be complied with. Treating seemingly mandatory provision as directory or permissive will not necessarily amount to a breach of that provision. I find it difficult to accept the proposition that failure to specify the exact nature of the relief sought, will preclude the Court from granting the appellant the relief it thinks he is entitled to should his appeal succeed.
While it is desirable that the exact relief sought be stated in the notice of appeal so that the Court may be guided in making its order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the notice of appeal. Whether an appeal will be dismissed or allowed or struck out or the case will be remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails. If I may confess, I hardly turn to the notice of appeal to verify the reliefs sought by an appellant before making an order following the success of his appeal. The order I make is that which appears to me to flow from the decision arrived at in the appeal. …”
In the instant case on appeal, the Respondents’ claim for monetary compensation in the form of damages was against all the Respondents in the action they (Respondents) brought. In my considered view, it cannot be successfully argued that the Respondents did not want any of the Respondents in their action damnified in damages. All that the manner in which the Respondents couched their claim in or for damages, is that they wished the Appellants to bear a greater share of the damages to be awarded in the event their action succeeded and which was the case. The findings of the lower Court are to the effect that it was the complaint which the Appellants lodged against the Respondents and which was actuated by malice, that led to the unlawful arrest and detention of the said Respondents. In my considered view, the Appellants and the 3rd – 5th Respondents were in effect found to be joint tortfeasors. This can also be likened to the concept of principal offenders in relation to criminal liability as enunciated in the case of ANYASODOR V. STATE (2018) LPELR-43720(SC) wherein the Supreme Court stated thus: –
“That she did not do the shooting personally does not exculpate her for the main offence as Section 7 of the Criminal Code sees to that. I shall recast the provisions of that law thus:
Section 7 –
“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) Every person who actually does the act or makes the omission which constitutes the offence:
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence:
(c) Every person who aids another person in committing the offence:
(d) Any person who counsels or procures any other person to commit the offence.”
Flowing from all that has been said, is that the lower Court cannot be rightly accused of having made an amendment to the reliefs claimed by the Respondents suo motu in awarding damages to the Respondents and against the Appellants jointly and severally as it were.
In any event, the Appellants would appear to have overlooked the provisions of Order 9 of the “FREPR, 2009” which deal with effect of non-compliance and Order II which deal with “order which the Court may make”, and that their not raising any complaint against the manner in which the Respondents couched their relief for damages before the lower Court (which I consider to be no more than a procedural irregularity) leaves them with no basis to now complain against the same on appeal. In this regard see the case of SAUDE V. ABDULLAHI (1989) LPELR-3017(SC) wherein the Supreme Court stated thus: –
“It has since been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain, at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings. See … The only exception to this general rule is that the party would be allowed to complain on appeal if it (sic) can show that it had suffered a miscarriage of justice by reason of the procedural irregularity.”
The position of the law is that the Court must provide a remedy where the plaintiff has established a right and that the Court is also to look into the substance of an action and not the form. See the case of BFI GROUP CORPORATION V. BPE (2012) LPELR-9339(SC). The Appellants have not shown that they have suffered any miscarriage of justice given the manner in which the lower Court made the award of damages against all the Respondents in the action before it, and I find all the arguments of the Appellants regarding the award of damages, despite the splitting of the same in the reliefs of the Respondents to be fanciful and tenuous.
As for the complaint of the Appellants that the damages of N1,000,000.00 is excessive, I am of the considered view that inasmuch as the Appellants did not with any measure of success controvert the position of the Respondents as to what they suffered at the hands of the Police consequent to the wrongful involvement of the Police in a matter that was in the realms of trespass and/or an infraction that the law has undoubtedly provided for the means of enforcement (by way of committal proceedings), there is simply no basis for this Court to interfere with the sum awarded against all the Respondents in the action brought by the Respondents herein. The Appellants who must be deemed to know that a non-violent incursion to a parcel of land in the possession of another person even if the incursion is as a result of a totally baseless right to the ownership of the said land by the person committing the infraction, should not involve the Police and the Police too, who as custodian of the law to a certain extent, should know that it is not within their province to use their position to champion the cause of any of the parties in a civil dispute or allow any of the said parties to so use them, made the award of the damages made by the lower Court, very all right. Indeed, the brazenness of the actions of the Appellants and the 3rd – 5th Respondents, are such that should have warranted the award by the lower Court of higher and aggravated damages against the said parties including the Appellants irrespective of the duration of the detention of the Respondents after they were arrested, particularly taking the age of the 1st Respondent herein into consideration.
Flowing from all that has been stated, is that Appellants’ issue 4 is resolved against them and in favour of the Respondents.
The last issue for resolution in the instant appeal is the order of perpetual injunction granted by the lower Court against the Appellants and 3rd – 5th Respondents. The said order reads: –
“The Respondents, by themselves, their agents, privies and servants are hereby perpetually restrained from further arresting, detaining or in any other manner whatsoever dealing with the applicants in respect of or concerning the maters (sic) giving rise to this application.”
Having highlighted the submissions of the parties before now, I am of the considered view that the argument of the Respondents to show that the “maters (sic) giving rise to this application”, is not the disputed ownership of the land upon which the Respondents are re-building is very fanciful and tenuous. The Respondents having regard to the injunctive order they sought in the instant action and which was already executed as it were, and having not presented any fact to show that there was any likelihood of the Appellants and 3rd – 5th Respondents repeating the acts for which they have been restrained, in my considered view, were surreptitiously seeking for an order endorsing their supposed ownership of the land on which they were re-building their burnt mud house. A fundamental right proceeding is not suited for such a cause of action. An order of injunction in the manner it was granted by the lower Court is not appropriate in the circumstances of this case and the Respondents were being very crafty or mischievous in seeking for the order in question and this Court cannot allow the Respondents to pull wood over its eyes as the lower Court has allowed them to. This is despite the fact that the said Court stated expressly in its judgment that “I have carefully gone through the application together with the various affidavits and written addresses. I must tread with caution with regard to the exhibits of the applicants and 1st and 2nd respondents and the issues touching on the matter which is before the Court of appeal.”
The further affidavit filed by the Respondents glaringly shows that there is a dispute as to the ownership by the Respondents of any part of the Umuebo family land and that it is in exercise of their alleged right over the land to the exclusion of the Appellants that made the said Appellants to bring in the Police into the matter and as a consequence of which the Respondents were arrested and detained. I am at one with the Appellants that a fundamental right proceeding is not to be used to establish ownership of land even as I also agree that the Respondents did not need to establish their ownership of the said land to prove the wrongness of their arrest and detention in respect of the parcel of land which they claim to have possession of. Since I am of the considered view that no matter the angle from which the order of perpetual injunction granted the Respondents by the lower Court cannot but be said to be surreptitiously connected with the issue of ownership of land on which the Respondents were building, this Court cannot allow the same to stand. The said order of perpetual injunction must be struck down and it is hereby so struck down.
Flowing from all that has been said above, is that Appellants’ issue 5 is resolved in their favour.
In the final analysis, the instant appeal is not totally devoid of merit given the resolution of Appellants’ issue 5, in their favour. Accordingly, the judgment of the lower Court appealed against by the Appellants, is upheld save that prayer or relief for an order of perpetual injunction granted the Respondents by the lower Court is dismissed.
I make no order as to costs in the circumstances of the instant appeal.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, AYOBODE O. LOKULO-SODIPE, JCA and I am in total agreement with the reasoning and conclusion arrived at.
My Lord, in a succinct matter, resolved the issues donated for resolution in this appeal, thus requiring no further elucidation. I therefore adopt this judgment as mine and also make no order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have read the leading judgment of my learned brother, Ayobode Olujimi Lokulo-Sodipe JCA. I am in agreement with his reasoning and conclusion. Issues 1, 2, 3 and 4 having been resolved against the Appellant, the appeal in the main fails. Consequently, the judgment of the lower Court is affirmed saved for the order of perpetual injunction wrongly granted by the lower Court in favour of the Respondents which is hereby set aside.
Appearances:
C.N. Nwokorie, Esq., with him, A.C. Ijiomah, Esq. For Appellant(s)
Nwabueze Nwankwo, Esq. – for 1st and 2nd Respondents.
3rd – 5th Respondents are absent and not represented by counsel. For Respondent(s)
