UNIVERSAL INVESTMENT & DEVELOPMENT & ANOR v. ITOROH & ORS
(2021)LCN/15808(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, March 15, 2021
CA/AS/29/2018
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. UNIVERSAL INVESTMENT & DEVELOPMENT 2. MARY OHOHE APPELANT(S)
And
1. KATHLEEN ITOROH 2. ABU NASIRU, IPO, AREA COMMAND, WARRI 3. THE COMMISIONER OF POLICE, DELTA STATE POLICE COMMAND, ASABA RESPONDENT(S)
RATIO
WHETHER OR NOT AN IMPROPER USE OF LEGAL PROCESS BY A PARTY AMOUNTS TO AN ABUE OF COURT PROCESS
However, the law is that where there is an improper use of legal process by a party it amounts to an abuse of such process. See; WILLIAM & ANOR v USEN & ORS (2018) LPELR – 46163 (CA); where this Court held thus;
“Now, the Appellants’ chief grievance is that the lower Court erred in law when it held them responsible for breach of the respondents’ fundamental rights when they merely exercised their civic duty of reporting of commission of offences. It is settled law, that a person who reports a complaint of commission of crime to the police, a duty incumbent on citizens, cannot be guilty of infraction of a fundamental right of one named in the complaint. In Fajemirokun v. C.B. Nig. Ltd (supra), Ogebe, Jsc, confirmed that: Generally, it is a duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police.
…The connotation of the term mala fide was graphically, weaved by Tobi, JSC in Akaninwo v Nsirim (2008) 9 NWLR (Pt. 1093) 439 at 475, in these illuminating words. Mala fide is the opposite of a bona fide. It simply means bad faith as opposed to bona fide which is good faith, mala fide projects sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a deliberate wrong emanating from ill- will…”
per OGBUNINYA, JCA (PP. 13 – 17, PARAS A – B)
See also; IBANGA & ORS v AKPAN & ORS (2018) LPELR – 46167 (CA); ABUGO v AROMUAINO (2018) LPELR – 46142 (CA). PER OBASEKI-ADEJUMO, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES
The law does not change, in that he who alleges must prove. Can it be said that the 1st Respondent has proved the allegation of breaches or threat to breaches?
It is a trite principle of law that in civil matters, the standard of proof is that of preponderance of evidence only; See; AMOKOMOWO v ANDU (1985) LPELR – 469 (SC); OMOTOYE v ABC (TRANSPORT CO) LTD (2009) LPELR – 8269 (CA); ENWEZOR v ENWEZOR & ANOR (2012) LPELR – 8544 (CA).
Furthermore, in civil cases the burden of proof shifts. See; INYANG v CHINA CIVIL ENGINEERING CONSTRUCTION CO. (2020) LPELR – 49694 (CA).
In WIILIAMS & ANOR v USEN (2018) LPELR – 46163;
“Notably, the burden of proof (onus probandi) of the breach of fundamental right of a citizen resides in an applicant, id est, the respondents in this appeal, see Fajemirokun v. C.B. Nig. Ltd (supra); Lafia Local Govt. v. Gov., Nasarawa State (supra); Jim-Jaja v. C.O.P, Rivers State (supra). The standard of proof is on the balance of probability or preponderance of evidence, see Arowolo v. Olowokere (2012) All FWLR (Pt. 606) 398.”
per OGBUINYA, J.C.A (P. 12, PARAS. E – F). PER OBASEKI-ADEJUMO, J.C.A.
WHETHER OR NOT AN INVITATION BY THE POLICE FOR THE PURPOSE OF INVESTIGATING AN ALLEGATION AMOUNTS TO THE BREACH OF FUNDAMENTAL HUMAN RIGHT OF THE CITIZEN
This Court in KALIO & ANOR v DAWARI & ORS (2018) LPELR -44628 (CA); considered the throbbing question “Whether an invitation by the police for the purposes of investigating an allegation would amount to a breach of the fundamental right of the citizen’’ thus;
“By Section 4 of the Police Act, the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. Thus, when a crime is imputed as was done in both Exhibits “B” and “C”, the Police reserve the right to invite the suspects which the Appellants were by virtue of the said petitions, for purposes of investigating the allegations. See particularly Fawehinmi vs. Inspector General of Police (2002) 7 NWLR Pt. 767, Pg. 606, 670; Bobade Olutide vs. Adams Hamzat (2016) LPELR-26047(CA); and Fajemirokun vs. Commercial Bank (Credit Lyonnais) Nig. Ltd. (2009) 5 NWLR Pt. 1135 Pg. 558, 600. An invitation by the Police to a citizen with the aim of ascertaining the veracity or otherwise of allegations leveled against the said citizen, cannot by any stretch of imagination constitute a breach or threat to the fundamental right of the citizen. The learned trial Judge was therefore correct in his findings that the petition of the 1st Respondent to the Police concerning the Appellants is not frivolous and deserve investigation in view of Exhibits A1, A2 and A3, and that the Police acted within the ambit of the law when they invited the Appellants for questioning.” per JOMBO – OFO, J.C.A (PP. 16-17, PARAS. A – B)
See also; USMAN & ORS v IGP & ORS (2018) LPELR 45311 (CA); UBOCHI v EKPO & ORS (2014) LPELR – 22532 (CA). PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Hon. Justice E. A Obile of the Federal High Court, Warri delivered on the 7th day of November, 2017. At the lower Court, the 1st Respondent was the Applicant while the Appellants, the 3rd & 4th Respondents were the Respondents to the Enforcement of Fundamental human Right Application to which the 1st Respondent as an Applicant sought the following reliefs:
1. A declaration that the invitation of the Applicant by the 3rd Respondent acting under the supervision of the 4th Respondent and at the instance and/or instigation of the 1st and 2nd Respondents in the circumstances of this case amounts to an abuse of the criminal justice system and violation of the Fundamental Rights of the Applicant as guaranteed by Section 34 (1), 42 (1), (2) and 35 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. An order of injunction restraining the 1st and 2nd Respondents from using and/or further using the 3rd and 4th Respondents, their servants, agents/privies or otherwise howsoever from harassing, arresting and/or detaining the Applicant over issues arising from the matter that is contractual in nature.
OR
3. An order of injunction restraining the 3rd and 4th Respondent, their servants, agents/privies or otherwise howsoever from causing the Applicant to be harassed, embarrassed, arrested and detained and intimidated overnight in the facility of the Nigerian Police Force or any other facility over any offence arising from the subject matter of this suit but to allow the Applicant bail facility without demand for money but with credible and reliable surety consistent with the relevant provisions of the law.
4. An order of injunction restraining the 1st and 2nd Respondents from using and/or further using the 3rd and 4th Respondents, their servants, agents/privies or otherwise however from harassing, arresting, and/or detaining the Appellant or placing any inhibition on and/or disturbing the liberty and normal life of the Applicant in any manner not permitted by law to wit: dignity of human person, personal liberty, fair hearing, private and family life and freedom from discrimination guaranteed by the Constitution of the Federal republic of Nigeria, 1999 (as amended)
5. The sum of N1,000,000.00 (One hundred million naira) being damages against the 1st and 2nd Respondents jointly and severally or the professional charges of instituting this action.
A brevity of the facts of this case is that the 1st Respondent became an employee of the 1st Appellant; Universal Investment & Development Company Ltd in 2008 and in the course of her employment she attained a professional qualification as a Chartered Account in 2010 which shot her to the position of the Internal Auditor of the 1st Appellant from where she proceeded to the office of the Deputy Manager from which she was demoted by the Board of the 1st Applicant and the position she hitherto occupied became vacant and an advert was made requesting for applications from suitable qualified candidate and the position was entrusted on the most suitable qualified applicant.
In 2013, the 1st Respondent volunteered to help the 1st Appellant sell 1000 birds it produced for sale and she remitted about two million naira as the proceeds from the sales to the 1st Appellant and was appreciated for her effort and in 2014, the 1st Appellant also produced 1000 birds for sale which the 1st Respondent took delivery of and sold after which she remitted the amount she realized to the 1st Appellant’s coffers and was also appreciated for her effort through monetary award.
In 2015, the 1st Respondent was requested to give a written report on the sale which she promptly did but the 1st Appellant found her report unsatisfactory and a query was issued to her. The 1st Respondent replied the query and tendered a resignation letter on the same day 17th April, 2005 due to her dissatisfaction with the manner in which she felt she was being victimized.
On the 13th of October, 2015 the 1st Appellant through a bailiff from the Magistrate Court, Effurun Magisterial District served a dismissal letter from the Appellants on the 1st Respondent, for which the 1st Respondent wrote a reply on the 9th day of November, 2015. The 1st Respondent upon the consequent supposed harassment and especially the use of the 2nd and 3rd Respondent was constrained to bring the action before the lower Court; to prevent more and greater infringement of her right to dignity of human person, personal liberty, fair hearing and freedom from discrimination. The lower Court entered judgment in favour of the 1st Respondent and granted all the reliefs sought (including the main and alternative reliefs), but excluding relief five which was held to be unsubstantiated and equally awarded damages of one million naira.
Dissatisfied and aggrieved with the judgment, the Appellants filed a Notice of Appeal dated 23rd November, 2017 and Appellants’ brief of argument filed 10th April, 2018 but deemed 23rd September, 2019 and a Reply brief filed on 14th September, 2020 deemed on 18th January, 2021 both briefs were settled by Emmanuel Olayiwola Afolabi, Esq, P. E Chukwu (Mrs), A. I Tsado (Mrs), Simon Ezenwa Ezeh, Esq, A. D Yusuf (Mrs); Uloho Esther (Mrs); Enyawuile C. Abednego, Esq; E. D Oribhabor (Mrs); E. Odiase, Esq; M. Ofure Ogbiede (Mrs); Anthony O. Osula, Esq; M. O. Asuma (Miss); S. U. Enyawuile, Esq; I. I Irele – Ifijeh Esq of OLAYIWOLA AFOLABI & CO, wherein the following issues where distilled for determination;
1. Whether the learned trial Judge was justified in law when he awarded the sum of one million naira in favour of the 1st Respondent for an alleged threat to her fundamental human right when the award or damage was not sought by the party.
2. Whether the learned trial Judge was right when he held that the Appellants violated the fundamental rights of the 1st Respondent.
3. Whether the learned trial Judge was right when he entered judgment in favour of the 1st Respondent and granted reliefs one, two, three and four sought by the 1st Respondent when the Reliefs were not proved.
4. Whether the learned trial Judge was right when he held that paragraphs 11, 13, 15, 16, 17, 18, 19, 20, 23, 24, 27, 32 and 35 of the Counter Affidavit are incompetent and struck out same for non compliance with Section 115 (1) (2) (3) and 4 of the Evidence Act, 2011.
5. Whether the trial Judge was right when he granted both main and alternative reliefs of the 1st Respondent, in way and manner that caused the judgment to be speculative.
The 1st Respondent’s brief was filed on 22nd March, 2019 and deemed 18th January, 2021 same was settled by Dokpegboritse J. Atotuomah Esq of ROBINSON ARIYO & CO wherein he distilled the following issues for determination thus;
1. Whether considering the circumstances of this case, the Learned Trial Judge was justified in law to award the sum of One million naira in favour of the 1st Respondent.
2. Whether considering the circumstances the facts of this case, the learned Trial Judge was not justified in law to hold that the Appellants violated the fundamental rights of the 1st Respondent.
3. Whether a Court of law does not have the duty to expunge or refuse to consider statutorily prohibitive evidence even if same was not opposed to by any of parties.
4. Whether considering the circumstances and facts of this case, the trial Judge was not right when he granted both reliefs of the 1st Respondent.
The 2nd & 3rd Respondents’ brief was settled by Onoriode W. Ewenode Esq., FIMC, CMC of O. W. EWENODE & CO wherein a sole issue was formulated for determination;
“Whether the learned trial Judge was not right to have granted the 1st Respondent her reliefs sought?”
APPELLANTS’ ARGUMENTS
On issue 1, the Appellants cited the cases of UZOUKWU v EZEONU II (1991) 6 NWLR (PT. 2000 708; NIGERIA AIRFORCE v SHEKETE (2002) 18 NWLR (PT. 798) 129; STOWE v BENSTOWE (2012) ALL FWLR (PT. 620) 1245 @ 1261 in submitting that the reliefs sought in a matter are the prayers by a litigant at the conclusion of the averments of facts. What goes to trial is the entitlement to the reliefs claimed based on the facts.
That the 1st Respondent had five reliefs, which to her were substantial enough to address her cause of action but the 1st Respondent never asked for damages for the violation of her Fundamental Human Right which was noted by the learned trial Judge but went ahead to award same.
Appellants further submit that the learned trial Judge’s disposition only aroused sympathy in granting an award of damages to the 1st Respondent when same was not sought. It has been held by the Court that sympathy has no place in our jurisprudence; N.E.P.A v AUWAL (2011) ALL FWLR (PT. 567) 791 @ 807 – 808; GUARDIAN NEWSPAPERS LTD v AJEH (2011) ALL FWLR (PT. 584) 1 @ 26 – 27; CAMEROON AIRLINES v OTUTUIZU (2011) ALL FWLR (PT. 570) 1260 @ 1282, PARA F – G were cited in aid.
That the decision of the trial Court in awarding the 1st Respondent a damage of one million naira is erroneous and unjustifiable and the award resulted to the expansion of the cause of action the 1st Respondent submitted to the trial Court for trial and determination. Counsel urges the Court to set aside the One million naira damages and resolve the issue in favour of the Appellants.
On issue 2, the Appellants submit that the relevant law which confers on the 1st Respondent her right to personal liberty is Section 35 (1) of the 1999 Constitution (as amended) which also provided limitations, such that there are situations and circumstances where it becomes imperative and expedient for personal liberty of a person to be interfered with which includes but not limited to, that a person can be arrested based on a reasonable suspicion of having committed an offence. That Section 35 (1) (c) of the 1999 Constitution (as amended) is apt to the circumstance of this case as the invitation made to the 1st Respondent was based on an allegation of fraud perpetrated by the 1st Respondent in which the 3rd and 4th Respondents have the jurisdiction to entertain, investigate and prosecute in accordance with the powers vested on them by the provision of Section 4 of the Police Act. To this end, the Appellant have acted justifiably by laying a complaint to the 3rd and 4th Respondents; MAJOR HAMZA AL – MUSTAPHA v THE STATE (2013) LPELR – 20995 (CA) AT PP. 79 – 80, PARAS D – B.
It is the submission of the Appellants in issue 3 that he who asserts must prove his assertions, the onus is on the Plaintiff (the 1st Respondent herein as Applicant at the Lower Court) to establish the case she set upon the strength of her case and not upon the weakness of the Defendant case (herein the Appellants as Respondents in the Lower Court). The 1st Respondent was duty bound to satisfy the trial Court that upon the facts stated in her affidavits she is entitled to reliefs sought; HOPE v ELLEH (2010) ALL FWLR (PT 537) 685 @ 699, PARAS A – C was relied upon.
That the trial judge believed the case of the 1st Respondent while the Court failed to avert his mind to the fact that the 1st Respondent who has the duty to prove the reliefs she sought had failed to prove reliefs with facts.
It is the contention of the Appellants that in relief one, throughout the length and breadth of the affidavit setting out the facts upon which the application is made, there was no where the 1st Respondent stated that she was invited by the 3rd Respondent at the instance of the 1st and 2nd Appellants and how the said invitation breached her fundamental right. That the entire affidavit is bereft of relevant facts. Reliefs 2, 3 & 4 are orders for injunction to restrain the 3rd and 4th Respondents from harassing, arresting and detaining the 1st Respondent, while the 1st Respondent’s affidavit did not show how the 3rd and 4th Respondents harassed her or attempted to harass nor whether the 3rd and 4th Respondents have arrested or detained her or were making plans to do so.
ASMAN MAN AND MECH. CO. LTD v SPRING BANK PLC (2012) ALL FWLR (PT. 613) 1864 @ 1903, PARA E was cited in submitting that without the relevant facts to prove the reliefs of the 1st Respondent, there was nothing for the Court to consider.
Citing YAKUBU v P. H. C.N PLC (2012) ALL FWLR (PT. 616) 529 @ 550, PARAS B – D; INTERCONTINENTAL BANK PLC v ZUMAFOR ENG. CO. LTD (2010) ALL FWLR (PT. 519) 1121 @ 1140, PARAS C- E
The Appellants submit in issue 4 that the law is that a Court must confine itself to the issues raised by parties to a suit which issues should also form the basis of his decisions as the Court is not allowed to go outside the issues set out by the parties or make a case for either party.
It was further argued that neither the 1st Respondent’s Counsel nor the Appellants raised the issue of defects in the Appellants’ Counter Affidavit and the non compliance with the provisions of the Evidence Act, that the trial Judge suo motu raised this issue in his judgment and failed to call on the parties to address them particularly the Appellants’ Counsel, and submitted that this is pre-judicial to the interest of the Appellants and denied them their right to fair hearing; OGBORU v UDUAGHAN (2011) ALL FWLR (PT. 577) 650 @ 676 – 677, PARAS G – A; DUKE v ADMINISTRATION – GEN, C.R.S (2011) ALL FWLR (PT. 592) 1786 @ 1794 PARAS B – D was cited in aid.
It is further submitted that the circumstances of this case does not justify the striking out of the paragraphs which the learned trial Judge dubbed as “offending paragraphs” of the 1st and 2nd Respondents’ (Appellants herein) Counter Affidavit. LONGE v FBN PLC (2010) LPELR- 1793 (SC), PAGES 44 – 45, PARAS. E – B was cited in stating that the 2nd Appellant is the Managing director of the 1st Appellant and in debunking the allegations set out in the 1st Respondent’s motion, the 2nd Appellant stand terra firma to speak for the 1st Respondent. A scrutiny of the paragraphs indicates that they were outcomes, decisions and steps taken by the organs of the 1st Appellant which could be communicated by the 1st Appellant as a corporate entity.
Counsel contends that in law, every affidavit used in the Court shall contain only statement of facts and circumstances to which the witness deposes, either of his own personal knowledge, or from information which he believes to be true. From the position of the 2nd Appellant in the 1st Appellant whatever information she discloses about the 1st Appellant is presumed to be from her personal knowledge of the affairs of the 1st Appellant as she is the alter ego; and such information will most certainly not offend the rule of the hearsay in Section 115 (3) and (4) of the Evidence Act.
PDP & ANOR v PHILIPS & ANOR (2010) LPELR 8980 (CA); ADEBAYO v JOHNSON & ORS (1969) 1 ANLR P. 171 were relied on in contending that it is only when a deponent alludes to fact that information was obtained from a source and yet withholds the source of his information that such an affidavit can be termed to be an hearsay and therefore inadmissible.
Counsel postulates that the 2nd Appellant having unequivocally stated her position, which was also that of the 1st Appellant, it behooved on the 1st Respondent to join issues with the Appellants on same, however, the trial Judge himself postulated that the facts deposed to were facts outside the knowledge of the 2nd Appellant and in so doing the trial Judge became guilty of dancing in the arena of conflict and postulating; SODIPO v LEMNINKAINEN O. Y (1986) 1 NWLR (PT. 15) 220; DAGOGO HARRY IPALIBO v THE STATE (2014) LPELR – 22678 (CA) AT P. 15, PARAS A – B.
FEDERAL REPUBLIC OF NIGERIA v FAITH IWEKA (2013) 3 NWLR (PT. 1341) PG 285. PP. 289 was also cited in submitting that the Court, while robbing the Appellants of a competent defence to the 1st Respondent’s claim by striking out crucial portions of the Appellants’ counter affidavit made a summersault to still rely on the same paragraphs in drawing an opinion favourable to the 1st Respondent. That the law is that a Judge cannot approbate and reprobate, the learned trial Judge erred when on the one hand he labeled the relevant paragraph of the Appellants’ counter affidavit as incompetent and on the other hand turned around to rely on the struck out paragraph in making a positive finding for the 1st Respondent.
Counsel contends further that the decision of the trial Court striking out paragraphs 11, 13, 15, 16, 17, 18, 19, 10, 23, 24, 27, 32 and 35 of the Counter Affidavit is erroneous, occasioned a miscarriage of justice and should be set aside; SHOFOLAHAN v STATE (2013) LPELR – 20998 (CA) PP. 22 – 23, PARAS E – A; ADELEKE & ORS v IYANDA & ORS (2001) LPELR – 114, (SC) PP. 20 – 21, PARAS. D – C.
On issue 5, the Appellants submit that in making orders, Courts of law presume that such orders would be obeyed by the parties who are expected to be bound by such orders. This presumption establishes a bounden duty on the Court to be conscious and wary of the nature and manner it grants reliefs, to avoid vagueness or speculation as to what it contains and the parties it will affect. KALU v FRN & ORS (2012) LPELR – 9287 (CA) was relied on.
That the operative word that casts aspersion on the “definitive” nature of the reliefs granted by the Court is the operative word “or” which creates two sets of reliefs.
UCHIV & ANOR v SABO & ORS (2015) LPELR – 40635 (CA); G.K INVESTMENT NIGERIA LIMITED v NIGERIA TELECOMMUNICATIONS PLC (2009) 7 SCNJ 92 AT 116, PARAS 5 – 10 was cited in postulating that the position of the law remains that a main claim and an alternative relief cannot be granted at the same time and urged the Court to set aside the reliefs as granted to the 1st Respondent in the alternative and dismiss same for being vague, nebulous and speculative.
In answering the question whether the reliefs granted were justified, Counsel submits that the Appellants have the right to report the commission of a crime when same is suspected, the issue that arises is whether the complaint of the Appellants against the 1st Respondent is founded and reasonable. Referencing and citing paragraphs 26, 29 of the Appellants’ counter affidavit, Counsel submits that the allegation of fraud being a serious offence that manifested in the sale of birds carried out by the 1st Respondent for the 1st Appellant constitutes a reasonable ground that warrants the investigation of the 2nd & 3rd Respondents.
Finally, Counsel submits that the decision of the lower Court in holding that the Appellants have violated the fundamental Rights of the 1st Respondent is wrong and unjustified as the 1st Respondent in her affidavit never stated how the Appellants acts infringed on her Fundamental human Rights, and the law is that a person would not be held liable for making a report to the police based on reasonable grounds; BASSEY v AFIA (2010) ALL FWLR (PT. 531) 1477 AT 1500 – 1501, PARAS H – A was cited in aid.
1ST RESPONDENT’S ARGUMENTS
Citing the legal maxim ubi jus ibi remedium and Section 167 of the Evidence Act, 2011, Counsel submits in issue 1 that the law is that where a wrong has been occasioned, a remedy ought to be readily available.
Making reference to paragraph 4.1 pages 4, 5 and 6 of the Appellants’ brief where they argued strenuously that the 1st Respondent did not seek the damages awarded to her by the lower Court, Counsel contends that the same is a misrepresentation of the facts of the case, instead the 1st Respondent sought damages as clearly stated in relief number 5 on the face of the originating process. That the said contention of the Appellants on the award of damages, particularly the authorities cited in support thereto are completely not applicable and distinguishable from the facts and nature of the extant case in that Fundamental Rights proceedings are sui generis and as a matter of law, reliefs thereat in appropriate cases are statutorily provided for and need not be contained in the originating processes. FALEYE v DADA (2016) ALL FWLR (PT. 845) PG. 150 @ 153 R. 1 SC; ONOVO v MBA (2015) ALL FWLR (PT. 765) PG 298 @ 301 R. 1 SC was cited in aid.
It is the postulation of the 1st Respondent that in fundamental right cases, whether or not the Applicant claims damages but is able to establish that his right has been breached or infringed upon then, he is entitled to compensation. The 1st Respondent has proven that her fundamental right has been violated or breached by the 1st and 2nd Respondents and she is therefore entitled to damages; GABRIEL JIM – JAJA v COMMISSIONER OF POLICE RIVERS STATE (2013) 6 NWLR (PT. 1350) 225 @ 244 – 245, PARAS H – B was referred to.
On issue 2, it is the submission of the 1st Respondent that the law remains that the powers and duties of the 3rd and 4th Respondents are qualified principally by the Constitution of the Federal Republic of Nigeria, 1999. Section 214 (2) (b) and Section 1 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) were referred to.
That by Sections 4 and 20 of the Police Act, the powers of the 2nd and 3rd Respondents to arrest are inherently qualified by the said statute creating same; requiring the powers to be reasonably, judicially exercised in its discretion.
It is the contention of the 1st Respondent that the criminal justice process in the circumstances of this case is being misused vis-a-vis the purpose for which the 1st Respondent is being isolated and targeted amongst the number of persons allegedly involved in a particular transaction where the 1st Respondent is a subordinate; Police Powers in Nigeria by George O. S Amadi, 2000 @ page 72; OGOEJEOFO v OGOEJEOFO (2006) ALL FWLR PART 301 PG 1792 RATIO 4; A.S.E.S.A v EKWENEM (2001) ALL FWLR (PT. 51) 2034 AT 2038 R. 3; NWADIOGBU v A.L.R.B.D.A (2011) ALL FWLR (PT. 562) 1612 AT 1616 R. 3; FAJEMIROKUN v COMMERCIAL BANK (NIG) LTD (2009) ALL FWLR (PT. 487) 1 AT 4 R. 4; ABUBAKAR v OIL AND ALLIED PRODUCTS LTD (2007) ALL FWLR PART 362 PG 1855 RATIO 12 were cited in aid.
Counsel further submits that the 1st Respondent was merely a tool in the hands of the alter ego of the 1st Appellant which in law would at best make her a sort of agent. That the law is that it is the disclosed principal that should be the necessary and appropriate party to be reported to the police; OSIGWE v PSPLS MANAGEMENT CONSORTIUM LIMITED (2009), 1 – 2 SC (PART 1) 79 @ 97; ARMAH v HORSFALL (2017) ALL FWLR (PT. 912) PG 709 @ 711 R. 1 SC.
It is the contention of the 1st Respondent that in the peculiar circumstances of this case, the question of whether the mandatory elements of reasonableness, judiciousness and exercise of discretion are present in the report made to the 2nd and 3rd Respondents by the Appellants. Counsel further contends that the validity therefore of an arrest in exercise of Police powers depends on whether the requirement of reasonable suspicion is observed by the Police in any given matter.
In response to submissions of the Appellants in pages 9, 10 and 11 of their Brief that the 1st Respondent did not prove reliefs one, two and four of her claims, Counsel submits that the Appellants misconceive the law, that the 1st Respondent proved her case as required by law and just the stated reliefs.
Section 1 (3) of the 1999 Constitution as amended; Section 136 (2) of the Evidence; KWALI v DOBI (2010) ALL FWLR PART 506, 1883 @ 1890 RATIO 5; DAREGO v A. G. LEVENTIS NIGERIA LTD & ORS (2015) LPELR – 25009 (CA0; AGALA v EGWARE (2010) ALL FWLR PART 532, 1609 @ 1615 PP. 1630, PARAS B – E; ANSA & ORS v ADDAX PETROLEUM DEVELOPMENT (NIG) LTD; SENATOR MOHAMMED MANA v PEOPLES DEMCRACTIC PARTY & ORS (2011) LPELR – 19754 (CA); COMMISSIONER OF POLICE & ANOR v JIMOH OGUNTAYO (1993) LPELR – (SC) were cited in submitting that the principle of the burden of proof is not static and it shifts between the parties in the course of the giving evidence in the proceedings. On issue 3, Counsel stated that it is the duty of the trial Court to evaluate the evidence in the case before it. That even though copious materials were placed before the lower Court, the issues that stood to be determined were very narrow and resolved themselves around the certain materials; the 1st Respondent’s rapid progress within the 1st Appellant’s management cadre became a huge source of victimization, harassment and oppression especially from the 2nd Appellant and her clique within the 1st Appellant, paragraph 5 of page 10 and paragraph 6 of page 41 of the Record, Section 167 of the Evidence Act were referred to.
FALEYE v DADA (2016) ALL FWLR (PT. 845) PG. 150 @ 153 R. 1 SC; ONOVO v MBA (2015) ALL FWLR (PT. 765) PG 298 @ 301 R. 1 SC were cited in buttressing the point that the primary duty of the trial Court to evaluate evidence and ascribe probative value which the lower Court in this instance case.
On issue 4, it is stance of the 1st Respondent that the issue of evidence is governed principally by the Evidence Act and it is only legally admissible evidence that a Court of law can validly use to determine legal issues before it and there is no discretion for a Court to act on evidence made inadmissible by express statutory provision. ENGR. AGBI & ANOR v CHIEF OGBEH & ORS (20030 FWLR (PT. 169) 1245 AT 1271 while TANGALE TRADITIONAL COUNCIL v ALHAJI FAWU & ANOR (20020 FWLR (PT. 117) 1137 AT 1167 was cited in submitting that an Appellate Court has a duty to reject such inadmissible evidence that has been admitted with no objection.
It is the further submission of the 1st Respondent that the learned trial Judge was right when he held that paragraphs 11, 13, 15, 16, 17, 18, 19, 20, 23, 24, 27, 32 and 35 of the Counter Affidavit are incompetent and were stuck out for non compliance with Sections 115 (1), (2), (3) and (4) of the Evidence Act, 2011. That the Appellants have interestingly failed to demonstrate that the said paragraphs are in compliance with Sections 115 (1), (2) (3) and (4) of the Evidence Act, 2011; should they agree that where a piece of evidence is prohibited it should be struck out then.
On the issue of the reliefs granted the 1st Respondent by the Lower Court, Counsel submit that the Appellants misconceived the law as the nature of the reliefs as can be glean from the face of the motion paper are such that can be contemporaneous and which therefore makes this case distinguishable from the cases cited by the Appellants in their Brief of Argument as follows;
Relief one is declarative and unenforceable as it provides the basis for the other reliefs; Relief two is injunctive premised upon relief one seeking to curtail further injuries; Relief three is injunctive seeking to prohibit the violation of the freedom and liberty of the 1st Respondent; Relief four is injunction covering scopes not covered by reliefs 2 and 3; Relief 5 is compensation for instituting the action.
In conclusion, the 1st Respondent submit the substance of the reliefs clearly does not support the arguments of the Appellant as the reliefs are in substance compatible with each other, they are coterminous and urge the Court to resolve all the above formulated issues in favour of the 1st Respondent and dismiss this appeal.
2ND & 3RD RESPONDENTS’ ARGUMENTS
It is the submission of the 2nd & 3rd Respondents that a Court will do justice after placing the case of all the parties in the imaginary scale and thereafter give its judgment based on the burden of proof and the balance of probability as provided for in Section 131 – 135 of the Evidence Act, 2011; OKPOKAM v TREASURE GALLERY LTD & ANOR (2017) LPELR 42809 (CA) 1 @ 24 – 25, PARAS E – B; RUGBERE v UBA PLC (2017) LPELR – 44966 (CA) 1 @ 17 – 18; AGI v PDP (2016) LPELR – 42578 (SC) 1 @ 83 – 84, PARAS C were cited in aid.
That declaratory relief are not granted by the Courts based on the weakness (es) of the Defendant/Respondent. A party in a claim for declaratory relief must establish by evidence, the reliefs sought otherwise the Court will not grant same; ALAO v AKANO & ORS (2005) LPELR – 409 (SC) 1 @ PG 10 PARAS C – D was relied on.
Counsel further submitted that one fundamental pillar of justice a Court of law must abide with is never to raise issue(s) suo motu without affording the Parties the opportunity of being heard on the issue(s) raised and the Court of law is bound by the Applicant at the trial Court; OWENA BANK (NIG) PLC v N. S. E. LTD (1997) LPELR – 3843 (SC) 1 @ 27 – 28 PARA A.
That it is the law that where a Party seeks reliefs and some are in the alternative, the Court hearing the relief(s) will only grant the main relief or the alternative, a Court will not grant both the main relief as well as the alternative relief, for the law does not work that way; GOVERNMENT OF KWARA STATE & ORS v RABELAT (NIG) LTD (2006) LPELR – 9842 (CA) 1 @ 11 – 15 PARA A.
In conclusion, Counsel urged the Court to do justice in this appeal.
APPELLANTS’ REPLY
Citing OKONGWU v NNPC (1989) 4 NWLR (PT. 115) 309; ASSAM v D.F.S LTD (2007) 16 NWLR (PT. 1060) 234 AT 241; BILLE v STATE (2016) 15 NWLR (PT. 1536) 363 AT 390; BIO v STATE (2020) 7 NWLR (PT. 1723) 218 AT 232 – 233 the Appellants submitted that the 1st Respondent’s brief is contrary to the rules guiding brief writing and it is full of half baked truth of what transpired at the trial Court.
In reply to the 1st Respondent’s issue 1, the Appellants submit the fact that circumstances abound that can trigger the appellate Court’s interference in an award of damages by the Court of Appeal; BIODUN ODUWOLE & 3 ORS v PROF. TAM DAVID WEST (2010) LPELR – 2263 SC; WILLIAMS v DAILY TIMES (1990) 1 NWLR (PT. 124) 1 AT 49, 55; SHUKKE v ABUBAKAR (2012) 4 NWLR (PT. 1291) 497 AT 425 PARA. H were cited in aid.
Appellants further submit that this Court can intervene in the award of damages by the trial Judge if it is proper and recognized in law and that the trial Judge never specified whether the damages granted was for special damages or whether it is exemplary damages or for general damages. COLLEGE OF EDUCATION WARRI v ODEDE (1999) 1 NWLR (PT. 586) 253 AT 263; ENG. FEMI SONUGA & ANOR v THE MINISTER FEDERAL CAPITAL TERRITORY ABUJA & ANOR 2010 LPELR – 19789 C1; MACFOY v UAC LTD (1961) 3 NLER 1169 were relied on.
ADETOUN OLADEJI (NIG) LTD v NIGERIA BREWERIES PLC (2007) LPELR – 160 (SC) @ 22 – 23; EAGLE SUPER PACK (NIGERIA) LTD v ACB PLC (2006) 19 NWLR (PT. 1013) 20; OSUJI v EKEOCHA (2009) LPELR 2816; MULTI TRADE ECOLOGY LIMITED v POWER NORTH – AICC EQUIPMENTS COMPANY (2018) LPELR – 45783 (CA) were referenced in submitting that a Court is strictly bound by the claim of a party.
In response to issue 3 of the 1st Respondent, the Appellants contend that the 1st Respondent rightly highlighted the issue as part of the argument but tactfully avoided countering the issue raised vide the ground of appeal and the legal argument proffered under the Appellant’s issue four.
FRN v SARAKI (2017) LPELR – 43392; NWANKWO & ORS v YARADUA (2010) LPELR – 2109 (SC) were cited in submitting that the failure of the 1st Respondent in this regard is a crucial and fundamental issue to the effect that the Respondents have no cross appeal on the issue at stake are bound to frame and argue their appeal on all the issues formulated by the Appellants. The duty of a Respondent is to defend the judgment. The attitude of the Respondents to clearly depart from the issues formulated by the Appellants is contrary to the rules guiding brief writing at the appellate Court.
That the legal implication of this is a gallant admission on the part of the Respondents on the issue formulated by the Appellants, and urge that issue 3 formulated by the 1st Respondent be rejected.
On the issue 2 of the 1st Respondent, the Appellants postulates in response that the 1st Respondent had a bounden duty to first assert her claim by credible evidence before any kind of shift of the burden to the Appellant herein. That the 1st Respondent failed to draw any nexus between the reliefs claimed and the action of the Appellants.
In conclusion, the Appellants contend that the 1st Respondent’s counsel failed to respond to crucial arguments canvassed by the Appellant but rather went on a legal voyage of his own, albeit tactfully under the adaption of the Appellants’ issues and urge the Court to uphold the appeal and set aside the judgment of the lower Court.
RESOLUTION
I have considered the issues before this Court as distilled by the parties; the Appellants’ issues (being the aggrieved party) would be adopted for the determination of this appeal.
In resolving the appeal, issues 1, 2 and 3 would be taken together as issue 1, while the other issues would be resolved as they are.
ISSUE 1 (issues 1, 2 & 3)
The apt question is whether or not the 1st Respondent’s fundamental human rights were violated or threatened to be breached?
The application for enforcement of the 1st Respondent’s Fundamental human right at the lower Court was triggered by the invitation of the 2nd & 3rd Respondents (the Police). However, the law is that where there is an improper use of legal process by a party it amounts to an abuse of such process. See; WILLIAM & ANOR v USEN & ORS (2018) LPELR – 46163 (CA); where this Court held thus;
“Now, the Appellants’ chief grievance is that the lower Court erred in law when it held them responsible for breach of the respondents’ fundamental rights when they merely exercised their civic duty of reporting of commission of offences. It is settled law, that a person who reports a complaint of commission of crime to the police, a duty incumbent on citizens, cannot be guilty of infraction of a fundamental right of one named in the complaint. In Fajemirokun v. C.B. Nig. Ltd (supra), Ogebe, Jsc, confirmed that: Generally, it is a duty of citizens of this country to report cases of commission of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police.
…The connotation of the term mala fide was graphically, weaved by Tobi, JSC in Akaninwo v Nsirim (2008) 9 NWLR (Pt. 1093) 439 at 475, in these illuminating words. Mala fide is the opposite of a bona fide. It simply means bad faith as opposed to bona fide which is good faith, mala fide projects sinister motive designed to mislead or deceive another. Mala fide is more than bad judgment or mere negligence. It is a conscious doing of a wrong arising from dishonest purpose or moral obliquity. Mala fide is not a mistake or error but a deliberate wrong emanating from ill- will…”
per OGBUNINYA, JCA (PP. 13 – 17, PARAS A – B)
See also; IBANGA & ORS v AKPAN & ORS (2018) LPELR – 46167 (CA); ABUGO v AROMUAINO (2018) LPELR – 46142 (CA).
The lower Court in this case held thus;
“An applicant must subject himself to due process of law where the need to do so arises but not in the instant case where the 1st and 2nd respondents have acted malafide (in bad faith). The allegation against the applicant in the case at hand is not made bonafide (in good faith) in the sense that the 1st and 2nd respondents have not placed before this Court material evidence to show that the applicant has committed any criminal offence known to law.
…From the facts and circumstances of this application, it has been shown that the report of the applicant to the police by the 1st and 2nd respondents is done mala fide and therefore culpable. In my view, the selective complaint against the applicant alone by the 1st and 2nd respondents out of six (6) persons amounts to persecution so to speak. See also the case of Ogoejeofo V. Ogoejeofo (2006) ALL FWLR (Pt. 301) 1792 ratio 4 cited by the applicant’s counsel.
The 1st and 2nd respondents have failed or neglected to show the crime the applicant has committed. The 1st and 2nd respondents are in my opinion pursuing shadow. The 3rd and 4th respondents seem not have acted on the complaint of criminal allegation against the applicant, that is better for them (police). I perused the provisions of Section 4 of the Police Act, and the cases of Gusau V Umezurike (2012) ALL FWLR (Pt. 655) 291 at 313, paras. D – F and Gasau v Nwangwa (2006) ALL FWLR (Pt. 324) 1830 at 1836 cited by the 1st and 2nd respondents counsel discovered that they are of no assistance to their case and are inapplicable to this application.
See pages 87 – 88 of the record.
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Furthermore, it is important to recall that the reason for the alleged crime and fraud that was said to be perpetuated by the 1st Respondent stemmed from the sale of birds produced by the 1st Appellant after the committee to sell same failed to do so, see paragraph 17 of the 1st Respondent’s affidavit at page 10 of the record.
From the record before this Court, the 1st Respondent carried out this sale twice, in 2013 & 2014. This sale was carried out by a team consisting of one Chukwuma Uwabor; Kathleen Itoroh (1st Respondent); Festus A; Opene Stanley; John Ukusaren. See Exhibit HH at page 27 of the Record.
See also paragraph 15 of the Reply to Counter Affidavit of 1st and 2nd Respondent at page 58, where it was stated thus;
15. That Further to paragraph (13) above I state as follows;
a. That the marketing process was carried out by a team of the 1st Respondent staff made up of the Applicant, Chuks Uwabor (farm Manager), Mrs Obiagele (Human Resource Manager), John Okusare (Transport Supervisor), Opene Stanley (Driver) who transported the birds from the MD’s farm to a different market.
b. That the farm Manager made available cages to the Managing Director (MD) farm which was used in transporting the birds
c. That the Human Resource (HR) Manger via the transport supervisor provided the Hilux truck that used in transporting the birds.
d. That the Applicant was only singled out knowing full well that other staff were also involved in the farm poultry business because the scheme of victimization, harassment and oppression was hatched and executed against the Applicant from the 2nd Respondent/Respondent and her clique with the 1st Respondent/Respondent.(UNDERLINING MINE)
Sequel to the sales of the birds, the team was given monetary rewards (Exhibit HH), this fact is not disputed by the parties.
At this point, I shall make reference to the finding of the lower Court where it held thus;
“The follow up question is, has that reward been withdrawn or nullified by the 1st respondent? The answer is in the negative. The effect of the non withdrawal of the reward offered to the applicant and other staff of the 1st Respondent means that 1st Respondent has no basis to complain of any criminal act against the applicant.
In any case, what is the basis of the criminal allegation made against the applicant? Is it that the applicant sold birds to Hausa people with no names and fixed addresses and/or that the number of birds that she claimed died is inconsistent. In my view the reason proffered by the 1st and 2nd respondents does not amount to reasonable suspicion for the 1st and 2nd respondents to set the law in motion against the applicant as purportedly done here. What is more, 1st and 2nd respondents failed to disclose the amount applicant is alleged to have defrauded the 1st Respondent in respect of sale of birds
Was it only the applicant that was rewarded? Again, the answer is No. From Exhibit HH attached to the affidavit in support of the motion, five (5) staff of the 1st Respondent were rewarded. They are; Chukwuma Uwabor, Kathleen Itoroh (applicant), Festus A, Opene Stanley and John Ukusaren.
I have no doubt in mind that the 1st Respondent considered the number of birds sold, the number birds that died(sic) and of course the number of birds sold to Hausa people before the applicant and four (4) other staff of the 1st Respondent were awarded. The 1st and 2nd respondents’ intention as demonstrated by them is to humiliate and ridicule the applicant, period. The 1st and 2nd respondents cannot reopen or revisit the issue of sale of birds by the applicant having rewarded her for a job well done. The law forbids them from doing so. Section 168 of the Evidence Act, 2011 and the case of Enahoro v O. Cerons Ltd (2015) ALL FWLR (PT. 776) 458 AT 459 R. 1
Furthermore, why was the applicant alone singled out for the commission of a crime out of four other staff. The answer is simple, the 2nd Respondent from her deposition hates or treats the applicant as her enemy and does not want to see her face because the applicant was very close with the former Managing Director (whose name the 2nd Respondent did not disclose) of the 1st Respondent. I see anger, jealousy and envy coming into play in the mind of the 2nd Respondent against the applicant.
…if as I have stated above the 2nd Respondent is not biased, then her complaint (if any) ought to have included the former Managing Director of the 1st Respondent who she refused to name, who was also the boss of the 2nd respondent. In fact the former Managing Director of the 1st Respondent should be the prime suspect and not the Applicant and the other four staff of the 1st Respondent that were rewarded. There is evidence that the applicant sold all the birds given to her to sell and so the issue of competition with the 1st Respondent as claimed by the 2nd Respondent does not arise at all…” (UNDERLINING MINE)
See pages 83 – 86 of the record.
I have reproduced the findings of the lower Court and when put against the actual supporting affidavit of the Respondent in my view the narration therein amounts more like victimization at work place. The 1st Respondent brought the application under the fundamental human rights procedure rules, wherein the burden of proof is the same as in civil matters, it is strictly proved before the burden of justification arises on the part of the Appellant. The law does not change, in that he who alleges must prove. Can it be said that the 1st Respondent has proved the allegation of breaches or threat to breaches?
It is a trite principle of law that in civil matters, the standard of proof is that of preponderance of evidence only; See; AMOKOMOWO v ANDU (1985) LPELR – 469 (SC); OMOTOYE v ABC (TRANSPORT CO) LTD (2009) LPELR – 8269 (CA); ENWEZOR v ENWEZOR & ANOR (2012) LPELR – 8544 (CA).
Furthermore, in civil cases the burden of proof shifts. See; INYANG v CHINA CIVIL ENGINEERING CONSTRUCTION CO. (2020) LPELR – 49694 (CA).
In WIILIAMS & ANOR v USEN (2018) LPELR – 46163;
“Notably, the burden of proof (onus probandi) of the breach of fundamental right of a citizen resides in an applicant, id est, the respondents in this appeal, see Fajemirokun v. C.B. Nig. Ltd (supra); Lafia Local Govt. v. Gov., Nasarawa State (supra); Jim-Jaja v. C.O.P, Rivers State (supra). The standard of proof is on the balance of probability or preponderance of evidence, see Arowolo v. Olowokere (2012) All FWLR (Pt. 606) 398.”
per OGBUINYA, J.C.A (P. 12, PARAS. E – F).
After all has been said and done the nagging question to my mind considering the supporting affidavits to the application is whether the allegation of an invitation by the police on the complaints of the Appellant amount to a breach of or a threat to a breach of fundamental rights of the 1st Respondent?
The 1st Respondent stated that the resignation was cumulated to dismissal by the Appellants and she received an invitation, this was not exhibited, the allegations contained are unknown, she stated that it was at the behest of the Appellants, and that it amounted to a breach or threat to a breach of her rights.
This Court held extensively on the issue thus;
In IHUA-MADUENYI v ROBINSON (2019) LPELR – 47252 (CA) on whether an invitation by the police for the purposes of investigating an allegation would amount to a breach of the fundamental right of the citizen;
“Section 4 of the Police Act confers on the 2nd and 3rd respondents extensive powers of maintaining law and order. By that Section, the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the Preservation of law and order, the Protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. See Fawehinmi V. Inspector General of Police (2002) 7 NWLR (Pt 767) 606; Ozah V. Economic and Financial Crimes Commission & Ors (2017) LPELR 43386 and Azuka V. Inspector General of Police (2007) CHR 69. Against the above background, would a grant of protective relief be appropriate in the circumstances it has to be noted that a mere invitation of a person by the police without more, is within their powers; except where it can be shown that the police misused their powers. Thus, the exercise of the powers of the police to invite and investigate crimes simpliciter cannot amount to a breach of fundamental rights. See Kalio & Ors V. Dawari & Ors (2018) LPELR 44628; Akanbi & Ors V. Commissioner of Police Kwara State & Ors (2018) LPELR 44049; and Tsanyawa V. Economic and Financial Crimes Commission & Anor (2018) LPELR 45099. The more reason can also be found in the fact that the duties of the police is both statutory and constitutional. By seeking some protective reliefs from the Courts, the Appellant is by implication trying to stop the police from performing their lawful and constitutional duties. It is not right and it is not healthy for the Courts to afford a shelter to people being investigated by the police for crimes. Where the Courts accede to these types of requests, then investigating crimes in this country would be an impossibility for every suspect will rush to the Court and seek for protective orders. The Courts cannot and should not stop police from performing their lawful and constitutional duties. See Oguejiofor & Ors V. Ibeabuchi (2017) LPELR 43590 and Attorney General Anambra State V. Uba (2005) 33 WRN 191. In the light of the above, the trial Court was perfectly correct to have refused the grant of any protective orders. The Appellant has not shown that any of his rights as guaranteed by Sections 34, 35 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been or are likely to be breached.” per LAMIDO, J.C.A (PP. 20-22, PARA. F)
What is a police letter of invitation?
It is a mere invite to clear the air of allegations made against that person, it triggers off the side story of the invitee who after answering questions is released on bail and if the matter amounts in their view to an offence, the matter will be taken to Court and if there are recoveries to be made or properties to be identified that is when the investigation really takes place. Can this be a breach or a threat to human rights?
This Court in KALIO & ANOR v DAWARI & ORS (2018) LPELR -44628 (CA); considered the throbbing question “Whether an invitation by the police for the purposes of investigating an allegation would amount to a breach of the fundamental right of the citizen’’ thus;
“By Section 4 of the Police Act, the Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged. Thus, when a crime is imputed as was done in both Exhibits “B” and “C”, the Police reserve the right to invite the suspects which the Appellants were by virtue of the said petitions, for purposes of investigating the allegations. See particularly Fawehinmi vs. Inspector General of Police (2002) 7 NWLR Pt. 767, Pg. 606, 670; Bobade Olutide vs. Adams Hamzat (2016) LPELR-26047(CA); and Fajemirokun vs. Commercial Bank (Credit Lyonnais) Nig. Ltd. (2009) 5 NWLR Pt. 1135 Pg. 558, 600. An invitation by the Police to a citizen with the aim of ascertaining the veracity or otherwise of allegations leveled against the said citizen, cannot by any stretch of imagination constitute a breach or threat to the fundamental right of the citizen. The learned trial Judge was therefore correct in his findings that the petition of the 1st Respondent to the Police concerning the Appellants is not frivolous and deserve investigation in view of Exhibits A1, A2 and A3, and that the Police acted within the ambit of the law when they invited the Appellants for questioning.” per JOMBO – OFO, J.C.A (PP. 16-17, PARAS. A – B)
See also; USMAN & ORS v IGP & ORS (2018) LPELR 45311 (CA); UBOCHI v EKPO & ORS (2014) LPELR – 22532 (CA)
I am afraid not! A police invite merely constitutes an exception to detention if the case falls under Section 35 of the Constitution of Nigeria.
That 1st Respondent needed to prove the discriminatory act and conducts of the Appellants towards her. Also that the alleged continuous harassment of the 1st Respondent with the exclusion of the other members as earlier stated in this judgment constitutes proof in relation to the reliefs sought by the 1st Respondent, also is farfetched because a party is at liberty to choose whom to complain about it is a personal choice. Again series of official panels with a view to unravel details of a transaction is normal and within the powers of the Appellants.
The action of the Appellants in my view does not constitute a breach of fundamental rights but a complaint on victimization at work place which is different from a fundamental right matter. See paragraphs 2 – 32 of affidavit in support of application.
At this stage, I have further examined the said affidavit, to see if there are depositions of the breach or threat to fundamental rights it’s trite that a party and the Court are bound by the pleadings, in this case the pleadings are the affidavit and counter affidavit filed by the parties.
In EFCC v FAYOSE & ANOR (2018) LPELR – 46163 (CA), the Court held thus;
“Affidavit evidence in an action on originating summons constitutes pleadings vide Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 at 549, N.N.P.C. and Ors. V. Famfa Oil Ltd. (2012) 17 NWLR (Pt.1328) 148 at 189, Uwazuruonye v. Governor of Imo State and Ors. (2013) 8 NWLR (Pt. 1355) 28 at 56. Since affidavit evidence in originating summons is treated as pleadings, the principle of law that parties and the Court are bound by pleadings and would not be permitted to stray outside the pleadings equally applies to affidavit evidence in an originating summons. Nor is it permissible for a party to make a case contrary to his pleadings vide International Messengers (Nig.) Ltd. v. Pegofor Industries Limited (supra) at 2028 following Cardoso v. Executors of the Estate of Doherty (1938) 4 WACA 78, George v. Dominion Flour Mills Ltd. (1963) 1 SC NLR 117, Orizu v. Anyaegbunam (1978) 5 SC 21. Address of counsel cannot replace pleadings or evidence in a case. It follows that the raising of the issue of suppression of facts or concealment of material facts in the oral address of the 1st Respondent at the Court below was of no moment to the case. …which are binding on the parties and the Court vide Commissioner for Works, Benue State v. Devcon (1988) 3 NWLR (Pt.83) 407 at 420 where the Supreme Court held that- “It is well settled that a plaintiff is bound by the case put forward in writ of summons, as in A. C. B Ltd. V. A.- G., Northern Nigeria (1969) NMLR 231.” UNDERLINNING MINE. Per IKYEGH, J.C.A (PP. 62-64, PARAS. B – C)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The only reference here to a threat or breach is paragraph 32, 33 & 36;
“32. That on the 13th October, 2015, a bailiff from the magistrate Court Effurun served a dismissal letter from the Respondent on me for which I wrote a reply on 9th of November, 2015. That the documents now shown to me and respectively marked as Exhibit FF and GG attached to…
33. That I now live in fear that given the antecedence of the 1st and 2nd Respondent, not bringing the instant application will portend more and greater infringements of my right to dignity of human person and personal liberty fair hearing and freedom from discrimination.
35. That by his application I have serious question bordering on my fundamental rights to be tried by this honourable Court’’
More glaring is the reply to the counter affidavit of the 1st Respondent, it is deficient of any iota of facts of palpable fear of harassment of the much facts of “given the antecedents of the Respondents’’. Nothing backed up this deposition. Sadly too, the 1st Respondent from her depositions is yet to answer the invitation, therefore the complaints made against her is unknown, in my view, it is speculative and presumptive for a Court to impute what is not. A Court does not deal with speculations but cold facts.
The lower Court in my view with due respect was carried away by the narration and the counter affidavit that he failed to put on the safety valve of checking whether conditions have been met.
This Court made it clear in the case of; MAI-KIRI v YAHAYA (2018) LPELR – 46595 that;
“Truly, the settled position of the law as expressed in several decisions is that speculation is not in the realm of the function of a Court of law neither is it the duty of the Court to search or hunt for explanation for inconsistencies in a party’s case. There is however a world of difference between speculation and findings of fact deduced from proved or admitted facts or the application of the principles of law to such ascertained facts. A finding is said to be speculative when it is not based on facts or knowledge of its details but on guesses or conjectures and not when it is based on or derivable from the evidence on record. Whereas speculation is a mere variant of imaginative guess which, even when it appears plausible should never be allowed by a Court of law to fill any hiatus in the evidence before it, an inference which is drawing of reasonable deductions from facts available before the Court IVIENAGBOR VS OSATO BAZUAYE & ANOR (1999) 6 SC (PT. 1) 149 per Uwaifo JSC, and the application of legal principles to ascertained facts from the evidence on record which are part of the functions of the Judge, does not amount to speculation nor can the Judge be accused of offering an explanation in applying the law to a given set of evidence. …The said finding which was based on the evidence on record and the application of the law to the evidence, cannot wear the toga of speculation as strenuously but erroneously argued by the learned Appellant’s Counsel.” per WAMBAI, J.C.A (PP. 26-28, PARAS. D – A)
I am afraid there is no affidavit evidence backing the reliefs sought and the lower Court failed to examine the facts in the affidavit evidence which gives a direction to go.
Having held that the threat or the actual breach of fundamental rights have not been proved it follows that the lower Court could not have granted reliefs 1, 2, 3 & 4. In fact the trigger of a criminal justice is the invitation by the police upon which if any criminality is established would have charges filed to Court for further action, I therefore disagree that a breach of criminal justice system has occurred.
It is when an Applicant establishes a breach or threat that the Respondent will be called upon to justify, their actions. With the circumstances of this case at this stage, it is premature to call on the Respondents to do so.
In FAJEMIROKUN v CBN SUPRA the Court held that a mere complaint to the police and nothing more cannot render the complainant liable for any breach, also the Police merely acted on the complaints received and duly activated the due process under the POLICE ACT and sent an invitation, they cannot be said to have breached the 1st Respondents rights or threaten her.
Issue 1 deals with the award of one million naira as damages in favour of the 1st Respondent.
It is before this Court as gleaned from the record of appeal and earlier reproduced in this judgment, the reliefs claimed by the 1st Respondent/Applicant in this case, and particularly of the claim of the 1st Respondent was for damages. Relief 4 is hereunder reproduced for clarity purposes;
The sum of N2,000,000.00 (One hundred million naira) being damages against the 1st and 2nd Respondents jointly and severally and/or the professional charges of instituting this action.
The particular amount that was sought for by the 1st Respondent cannot be properly ascertained because of the disparity between the amount written in figures; N2,000,000 (Two million naira) and the amount written in word; One hundred million naira and in the alternative asked for the professional charges of instituting this action.
The lower Court in resolving this issue held thus;
“From the relief copied above it is clear whether applicant (sic) is claiming the sum of N2,000,000 or N100,000,000 as professional charges for instituting this action. Is the applicant entitled to either of the sums claimed by her as damages for professional charges? The answer is No. This is because, the applicant has not placed before the Court any document to support the fact that she paid professional charges/fees in the sum of N2,000,000 or N100,000,000. This Court has nothing to rely on to award applicant damages as claimed under that head. Learned counsel for the applicant has failed to prove that applicant is entitled to recover her professional fees from the 1st and 2nd Respondents by way of damages.
However, aside the unproved professional fees/charges, is the applicant entitled to damages in the case in hand whether or not she claimed such damages in breach or violation of her fundamental human right. The answer is in the affirmative. This is because, it is settled law that in fundamental right cases, once whether or not applicant claim damages but is able to establish that his fundamental right. The answer is in the affirmative. This is because it is settled law that in fundamental right cases, once whether or not applicant claim damages but is able to establish that his fundamental right is breached or infringed then he is entitled to compensation. In the instant case, the applicant has proved that her fundamental right has been violated or breached by the 1st and 2nd Respondents and is therefore entitled to damages …”
See pages 120 – 121 of the Record.
The contention that, the 1st Respondent never demanded for damages for breach of her fundamental human right is however misconceived. A look at relief 3 shows that the 1st Respondent prayed for damages and/or the professional charges for instituting the suit.
A look at the claim shows that the claim is jointly for damages and professional fees or in the alternative for professional fees. The Court having found that nothing has been placed before to prove the claim of professional fees refused it but went further to consider the claim for damages for breach of her fundamental rights. The lower Court’s decision covers the alternative claim for the damages which was specifically claimed for.
It is a trite principle of law that general damages flows from the breach complained of and it is provided for in the 1999 Constitution (as amended) it follows a breach, unlike in civil cases.
Furthermore, and as stated by the learned trial Judge, in Fundamental Human Rights matters when the Appellant has proven the violation of his fundamental right by the Respondents, damages in the form of monetary compensation and even apology should follow. See; GABRIEL JIM – JAJA v COMMISSIONER OF POLICE RIVERS STATE (2013) 6 NWLR (PT. 1350) 225 AT 244 – 245, PARAS. Also in ATTAH v IGP & ORS (2016) LPELR – 24656 (CA); this Court held on the factors to be considered in awarding damages for infringement of fundamental rights;
“In the well – known case of Ajayi v A. G. Fed. (1998) 1 HRLRA 373, the Court observed that in fixing an amount for the infringement of fundamental rights, the following factors, amongst others, will be taken into consideration—(a) The frequency of the type of violation in recent times; (b) The continually depreciating value of the Naira; c) The motivation for the violation; d) The Stats of the Applicant; (e) The undeserved embarrassment meted out to the Applicant including pecuniary generally, particularly the Respondent.” per AUGIE, JCA (P. 46, PARAS. D – F).
See also; IGWEOKOLO v AKPOYIBO & ORS (2017) LPELR – 41882 (CA); FIRST BANK OF NIGERIA PLC & ORS v ATTORNEY – GENERAL OF THE FEDERATION & ORS (2018) LPELR – 46084 (SC).
The resolution in the previous issue having found that the Appellants did not breach any or threaten the fundamental rights of the 1st Respondent herein also affects the issue at hand, in the result that the allegation has not been proved therefore damages cannot stand. It is hereby set aside.
I resolve these issues (issues 1, 2 & 3) in favour of the Appellants.
ISSUE 2 (Issues 4 & 5)
I will resolve this issues for whatever it is worth.
In respect of issue 4, whether the learned trial Judge was right to have held that paragraphs 11, 13, 15, 16, 17, 18, 19, 20, 23, 24 27, 32 and 35 of the Counter affidavit are incompetent and struck them out for non-compliance with Section 115 (1), (2), (3) and (4)of the Evidence Act, 2011.
Section 115 (2), (3) & (4) provides thus;
“(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information”
The nagging question now is not whether the above listed paragraphs offended the provisions of Section 115 (3) & (4) of the Evidence Act considering the fact that the 2nd Respondent is the acting Managing director therefore the alter ego of the company?
I must state here and now that the caliber of the deponent does not alter the law as long as the depositions comply with the provisions of Section 115 of the Evidence Act.
It is trite that a company acts through its agents which in the case of a company are the board of that company, definitely all acts were performed by one officer or an officer heading that committee or the secretary, in this case, what was expected is a legal deposition and not what was a narration of the acting CEO of the 1st Appellant company in form of a counter affidavit.
First and foremost, is whether the Court can sumoto raise this issue without knowledge of parties who did not raise it?
The Appellants’ counter-affidavit in his pleading and in the defence before the Court I find that Appellants did not raise the issue of offensive affidavit, the Court raised it out of the blues, the lower Court therefore went on a voyage of his own when he analyzed and struck out the 12 paragraphs of the affidavit.
There is an adage that one cannot shave the head of another in his absence, what the Court did by not inviting parties to address him, is tantamount to stopping the Appellant from having any meaningful defense to the action after the relevant paragraphs had been struck out. Raising the issue suo moto amounted to a breach of fair hearing and rendered the proceedings on its own a nullity.
I resolve this issue in favour of the Appellant.
On the last issue the lower Court, made orders, a close look at the orders show that the orders are made in the alternatives, reliefs 4 & 5 are in the alternative in the motion paper, the learned trial Judge would have elected either of the two reliefs but the said orders as made leads to a confusion as to what was really ordered. The orders are hereby set aside.
I resolve this issue in favour of the Appellant. In the light of the holding that the 1st Respondent has not proved her case, these issues have been resolved in favour of the Appellants.
This appeal is meritorious and succeeds, it is hereby allowed.
The judgment of the Federal High Court of Delta State, Warri per Hon. Justice E. A Obile dated 7th November, 2016 is hereby set aside and suit FHC/WR/CS/4/2016 is hereby struck out.
Parties to bear their cost.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the lead judgment anchored by my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA allowing the appeal and I agree. There was no violation of fundamental rights proved by the fact of the report alleged crime to police, upon which an action tor breach of fundamental human rights could be initiated.
All other issues relating to the award of damages and what constitutes pleadings in an originating summons (which is indeed the Affidavit evidence) being the equivalent of evidence be led at the trial are all peripheral issues and do not constitute the ratio decidendi of the decision appealed.
Having resolved that determinant issue on the finding of liability on account of the report to the police being adjudged wrongful, I order as in the lead judgment that this appeal be allowed. I endorse all the consequential order therein made striking out the Suit No. FHC/WR/CS/4/2016.
JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned A. O. OBASEKI-ADEJUMO, JCA, I agree that the appeal has merit. I also allow the same and abide by the consequential orders made in the judgment.
Appearances:
E. C. Abednego, with him, Hannah Enyawuile For Appellant(s)
Chief Robinson Ariyo, with him, Atotuomeh D. J. – for 1st Respondent
Onoriode N. Ewenode – for 2nd and 3rd Respondent For Respondent(s)