ZORAMAWA & ORS v. DANLADI
(2021)LCN/15893(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, July 08, 2021
CA/S/151/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. ALH. BELLO AMIRU ZORAMAWA 2. MURJANATU UMAR 3. LUBA UMAR APPELANT(S)
And
SHUAIBU DANLADI RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS MANDATORY TO LINK COURT PROCESSES TO BE FILED IN COURT IN EITHER CIVIL OR CRIMNAL MATTERS WITH THE NATIONAL IDENTIFICATION NUMBER OF THE PERSON FILING IT
By virtue of the provisions of Section 1 (1) (u) of the Mandatory Use of the National Identification Number (NIN) Regulations, 2017 it shall be mandatory to link Court processes to be filed in Court in either civil or criminal matters with the NIN of the person doing the filing, be it the litigant himself or his counsel as the case may be. This is indeed a very novel provision of the law. It is such a very widely known and notorious fact capable of being judicially noticed that the issue of linking certain personal, private or official transaction with NIN is a very recent development in this Country. It is equally so widely known that people are now being compelled and given deadlines to register and obtain National Identification Numbers. The deadline is yet to expire. Nigerians are still at liberty to go out and register to obtain National Identification Numbers. No one is in violation of any law or regulations if before the expiration of the current deadline they had not registered for NIN or they do not have any. To the best of my knowledge none of the Rules of Court or the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 have recognised the provisions of Section 1 (1) (u) (supra) by having incorporated it as part of the rules of Court. I am aware that many Nigerians have been rushing to register for their NINs. It has been so frustrating to some as the facilities on ground have been less than satisfactory or effective to success in a mass exercise of that magnitude. PER GUMEI, J.C.A.
WHETHER OR NOT THE COURTS CAN PUNISH A LITIGANT FOR THE SIN COMMITTED BY HIS COUNSEL
It is trite law that Courts will not punish litigant or visit that innocent litigant with the sin committed by his counsel unless it can be shown that the litigant was a party to the commission of the sin see SHELL PETROLEUM DEV. of NIG. LTD V AGBARA (2016) 2 NWLR Pt. 1496 Pg 353 at 411. Section 7 of the regulation which makes provision for non-compliance with the provisions of the Regulations and other regulations made pursuant the Act punished offenders by mandatory imposition of administrative fines and sanctions by the commission As argued by the applicant the respondents have taken steps without raising any attack on the processes at the earliest opportunity their slumber has automatically cured the defect if any. PER GUMEI, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Kebbi State High Court, holden in Birnin Kebbi, delivered on 21st September, 2020 in Suit No. KB/HC/FHR/4/2020. Coram Judice Umar Abubakar, J.
The Respondent herein was the Applicant in an action for the enforcement of his fundamental human rights against the Appellants herein as the Respondents. In a motion on notice dated and filed on 3rd July, 2020 and brought pursuant to Section 46 of the 1999 Constitution, of the Federal Republic of Nigeria, as amended, Order 2 Rule 1 of the Fundamental Human Right (Enforcement Procedure) Rules, 2009 and under the inherent jurisdiction of the Court, the Respondent/Applicant sought for the following reliefs. They are: –
1. An order of this Honourable Court for the enforcement of the Fundamental Rights of the Applicant to dignity of human person, liberty and freedom of movement.
2. An order of this Honourable Court to the effect that the Applicant’s Fundamental Rights to dignity of human person, liberty and freedom of movement are protected by the Constitution of the Federal Republic of Nigeria (as amended) and violation of the said rights entitle the Applicant to compensation in damages and public apology.
3. An order of this Honourable Court declaring the detention and torture of the Applicant by the 1st Respondent at the instigation and/or complaint of the 2nd and 3rd Respondents as unconstitutional, unlawful and a breach of the Applicant’s rights.
4. An order of this Honourable Court directing the Respondents to jointly and severally pay the applicants the sum of two million naira only as damages for the breach and violation of the Fundamental Rights of the Applicants.
5. An order of this Honourable Court directing the Respondents to tender an apology to the Applicant for the breach of their Fundamental Rights – such apology to be published in at least two national daily newspaper circulating in Kebbi State.
6. An order of this Honourable Court restraining the 1st Respondent from further arresting, detaining and/or torture of the Applicant.
7. Cost of action.”
The motion is supported by a statement containing the grounds for the application and the reliefs therefore as well as an affidavit of 29 paragraphs with Exhibit A attached thereto. These processes were also accompanied by a 10 page written address. The Respondents/Appellants filed a 30 paragraph joint counter-affidavit. It was filed on 15th July, 2020. It was deposed to by the 2nd Respondent/Appellant and was supported by 5 page written address. On the 17th July, 2020, the Respondent/Applicant filed a 12 paragraphs further affidavit and a 5 page reply on points of law.
Issues having been duly joined on the application, it proceeded to hearing during the proceedings of the lower Court on 27th July, 2020 and adjourned for ruling. In its ruling, the lower Court found in favour of the Applicant and held thus:-
“Having decide all the three issues in favour of the Applicant against the Respondents, judgment is hereby entered in favour of the Applicant against the Respondents, with reliefs 1, 2, 3, 5, 6 and 7 granted as prayed by the Applicant while relief number 4 is reframed and granted as follows:
“An order of this Honourable Court Directing the Respondents to jointly and severally pay the Applicant the sum of One Million Naira (N1,000,000.00) only as damages for the breach and violation of the fundamental Rights of the applicant”
Application succeeds.”
(See lines 5–13 at page 81 of the record of appeal).
The Appellants were dissatisfied with the ruling. They appealed to this Court in a notice of appeal dated 3rd November, 2020 but filed on 4th November, 2020. It contains 6 grounds of appeal. they are as follows: –
“GROUND 1:
The trial Court erred in law and thereby occasioned a serious miscarriage of justice when the learned trial Judge treated the failure of the Respondent’s counsel to comply with the provisions of Section 1(l)(u) of the Mandatory Use of National Identification Number Regulations; 2017 as mere irregularity and that the Appellants did not raise the issue timeous,
Particulars of error:
a) The use of the National Identification Number on processes filed by a counsel in Courts or Tribunals both in criminal and civil matters is mandatory and must strictly be complied with.
b) The Appellants raised objection timeously and to this end, the trial Court ought to have considered the objection and enforce the provisions of the law.
c) The non-compliance of the said law cannot be treated as a mere irregularity.
GROUND 2:
The learned trial Judge erred in law and thereby occasioned a serious miscarriage of justice when his lordship totally agreed with the submission of the learned Respondent’s counsel to the effect that the Appellants’ Joint Counter-Affidavit before the trial Court was incompetent and liable to be struck out.
Particulars of error:
a) The Appellants’ Joint Counter-Affidavit substantially complied with the provisions of the law regulating the form and contents of affidavits.
b) The Counter-Affidavit was duly sworn before a person duly authorize to endorse the affidavit.
c) The learned trial Judge ought to have considered the Appellants’ Joint Counter-Affidavit as competent as same was sworn before a Commissioner for Oaths in Kebbi State.
GROUND 3:
The learned Judge of the trial Court erred in law when he held in his judgment that the Respondent’s Fundamental Rights were infringed by the Appellants on ground that there was no affidavit to counter the depositions in the Respondent’s affidavit.
Particulars of error:
a) Even in the absence of an affidavit to counter the depositions in the Respondent’s affidavit, the Respondent is not relieved of the burden placed on him to establish, with credible affidavit evidence, that his rights were indeed infringed by the Appellants.
b) There is nothing in the Respondent’s affidavit and further affidavit to suggest or prove the infraction of his Fundamental Rights.
GROUND 4:
The learned Judge of the trial Court erred in law and thereby occasioned a serious miscarriage of justice when he awarded the sum of One Million Naira (N1,000,000.00) general damages against the Appellants.
Particulars of error:
a) The award of One Million Naira (N1,000,000.00) as general damages against the Appellants is not a proper exercise of judicial discretion considering the fact that the Respondent has admitted having knowledge of the 2nd Appellant.
b) The Respondent is not entitled to award of damages not to talk compensation of One Million Naira (N1,000,000.00) against the Appellants.
GROUND 5:
The decision of the lower Court is perverse.
Particulars of error:
a) The trial Court did not properly evaluate the affidavit evidence before it to arrive at a logical and just conclusion of the matter.
b) There was no any evidence before the trial Court in proof of the Respondent’s assertion that he was detained and caned by the 1st Appellant.
GROUND 6:
The decision of the lower Court is against the weight of the affidavit evidence.”
To argue the appeal, learned counsel Mr. A. A. Fingilla, for the Appellant filed a brief of argument on 12th December, 2020. On behalf of the Respondent learned counsel Mr. Ihejirika filed a brief of argument on 17th January, 2021. At the hearing of the appeal before us on 15th March, 2021, respective learned counsel adopted and relied on their filed briefs of argument. Mr. Fingilla, of counsel, on behalf of the Appellants, urged on the Court to allow the appeal and set aside the ruling of the lower Court. On behalf of the Respondent, Mr. Ihejirika, of counsel urged that the appeal be dismissed and the ruling of the lower Court be affirmed.
From the 6 grounds of appeal, learned counsel Mr. Fingilla formulated and argued the following 5 issues for determination in this appeal. they are:-
1. WHETHER the use of the National Identification Number (NIN) on processes filed by a counsel in Courts or Tribunals in civil and criminal matters is MANDATORY and whether failure to comply thereof, could be treated as a mere irregularity. (Distilled from ground one of the Grounds of Appeal)
2. WHETHER the lower Court was right when it held that the Appellants’ Joint Counter-Affidavit was incompetent and liable to be struck out and accordingly struck it out. (Distilled from ground two of the Grounds of Appeal)
3. WHETHER the lower Court was right when it affirmed the alleged infraction of the Respondent’s fundamental Rights thereby granted all the reliefs sought and awarded the sum of N1,000,000.00 general damages against the Appellants on ground that there was no Counter-Affidavit to challenge the depositions in the Affidavit in support of the application. (Distilled from grounds three and four of the Grounds of Appeal)
4. WHETHER the lower Court properly evaluated the affidavit evidence filed before it in arriving at its decision.
(Distilled from ground five of the Grounds of Appeal)
5. Whether the lower Court was right in overruling the objection raised by the Appellants attacking the competency of the processes file by the Respondent, reason being that the objection was not raised at the earliest opportunity which according to the Court “automatically cured the defect”. (Distilled from ground six of the Grounds of Appeal).
Learned counsel Mr. Ihejirika formulated his own issues for determination. They are:-
“1. Whether by the circumstance of this case the Court below was not right in treating non-inclusion of National Identity Number (NIN) of the Respondent’s counsel as a mere irregularity thereby overruling the objection thereto. (Distilled from grounds 1 and 5 of the grounds of appeal)
2. Whether the Court below was not right in holding Appellant’s joint counter-affidavit to be incompetent thereby striking same out. (Distilled from ground 2 of the ground of appeal)
3. Whether the Court below was not right in ruling in favour of the Respondent and granting the reliefs sought. (Distilled from grounds 3 and 4 of the grounds of appeal).”
Let me at this stage point out that learned counsel Mr. Ihejirika did not formulate any issue out of ground 6 of the grounds of appeal. Whatever is the implication or effect of this failure or omission will be examined later in the course of this judgment. Suffice it to point out however that this appeal will be determined upon the 5 issues formulated on behalf of the Appellants.
Before I go into the arguments and submissions of respective learned counsel and the resolution of the issues for determination in the instant appeal, it is important to underscore and highlight some of the underlying facts that preceded the filing of this action. It all started as a paternity dispute between the 2nd Appellant and the Respondent. Because the judgment of the lower Court was anchored only on the facts contained in the affidavits of the Respondent/Applicant, after having discountenanced the joint counter–affidavit of the Appellants, I feel that it is sufficient enough to, in the circumstance, capture the story behind this action from the paragraphs of the affidavit in support.
To achieve this desired objective, I think paragraphs 4 to 18 of the affidavit are most relevant and are hereby reproduced in full thus:-
– That around April, 2020, 2nd Respondent claimed that I am responsible for pregnancy.
– That I know as a fact that the 2nd Respondent has numerous boyfriends. That I am not responsible for her pregnancy as I had affair with her in January, 2020.
– That the 2nd and 3rd Respondents reported me to the police C. I. D, Kebbi where the 2nd Respondent claimed to be seven months pregnant.
– That before reporting me to the police, the 2nd Respondent never told me any pregnancy.
– That C.I.D, Birnin Kebbi advised 2nd and 3rd Respondents to go and lodge their complaints before the Divisional Police Office, Birnin. Kebbi which they did.
– That the Police at the Division in an attempt to find solution to the situation resolved that I should cater for the pregnancy till delivery and after delivery my family and 2nd Respondent’s family should jointly contribute to conduct D.N.A test and if it is shown that I am not responsible for the 2nd Respondent and her family will refund to me and my family all that we spent and if it is shown that I am responsible, I will refund her family what they contributed in conducting the D.N.A test.
– That we agreed to the conditions offered by the police and the agreement was reduced into writing. The agreement is herewith attached as Exhibit ‘ A’.
– That on 17th May, 2020, despite the matter pending before the Divisional Police together with the agreement the 2nd and 3rd Respondents reported me to the 1st Respondent who summoned me to appear before him.
– That I went to the 1st Respondent around 11.00am on that 17th May, 2020 and the 1st Respondent wanted to force me to agree to be responsible for the pregnancy which I vehemently refused and I reminded him that the matter is before the Police and there is an agreement we wrote which is valid, subsisting and enforceable.
– That upon paragraph 13 above, the 1st Respondent became angry, telling me that what happened at the police station is rubbish. As he will not accept it.
– That the 1st Respondent upon paragraph 14 above, ordered his men to flog me which they gave me 14 lashes of cane (koboko).
– That the Respondents treated me like a common criminal and humiliated me despite the fact that the matter is pending before a competent authority and the 1st Respondent failed to consider my own side of the story
– That the 1st Respondent held me hostage from 11.00 am to about 6.30pm when he reluctantly allowed me to go with a warning that if I fail to acknowledge paternity of the child and also fail to contribute to the welfare of the child, he will imprison me pending when I will comply.
– That while in detention, I could not go anywhere that I would wish to go including my office.”
In arguing this appeal, learned counsel Mr. Fingilla for the Appellants began by arguing issues 1 and 5 together at pages 5 to 10, paragraphs 4.1 to 4.10 of the Appellants’ brief. In his effort to set the ball rolling and by way of an explanation, learned counsel set out in the provisions of the Mandatory Use of the National Identification Number Regulations, 2017 thus: –
“In accordance with the provisions of Section 27 (1) (l) of the Act, the use of the National Identification Number (NIN) shall be mandatory for the following additional transaction:- …
(u) Filing and registration of criminal and civil actions in Courts or other arbitration processes;”
Against the background of this regulation, Mr. Fingilla, of counsel pointed out that the processes filed to commence this action glaringly failed to comply with the mandatory requirement set out above. According to learned counsel, the failure to comply rendered the processes, incompetent and liable to being struck out in their entirety because of the use of the expression “shall be mandatory” in the quoted and applicable provision.
On the meaning and effect of the use of word “shall” in an enactment, learned counsel relied on the decision of this Court in BABATOPE V. SADIKU & ANOR (2017) LPELR–41966 (CA) pages 15–16 D–B where it was held that the word “shall” is never one that gives room for deviation or option because it requires strict compliance and when it is used in a statute, it is not permissive but creates a mandatory obligation. Learned counsel also referred to the decision of the Supreme Court in ALHAJI ADO IBRAHIM V. ALHAJI MAIGIDA U. LAWAL & ORS (2015) LPELR–24736 (SC) and MAMMAN & ANOR V. BWACHA & ORS. (2015) LPELR-40624 (CA) 38 B–D, all tending to re–echo and re–inforce the decision of this Court in BABATOPE V. SADIKU (supra). In further support, learned counsel referred to the decisions in MIC ROYAL LTD V. APCON (2018) LPELR–45314 (CA) 51–52 B–A where it was held that where the language of a statute is clear and unambiguous, the duty of the Court is limited to accord it the ordinary meaning it seeks to provide.
With the above postulation and submissions at the back of his mind, learned counsel Mr. Fingilla, pointed out that it is trite that the issue of the competence of an action is invariably an issue of jurisdiction which a Court would have had to hear and determine the action, but for the incompetence.
Learned counsel relied on some additional decided cases to illustrate the relationship and nexus between jurisdiction and competence of actions before the Courts as well as the paramount and profound effect of jurisdiction in the life of an action in many of its aspects, facets or manifestations as was stressed and explained in the famous and ever green decision in the case of MADUKOLU V. NKEMDILLIM (1962) 1 ALL NLR 587 at 589.
In his concluding arguments, learned counsel emphasised and submitted that the lower Court erred in law when it disregarded the objection raised on the competence of the originating processes and treated the defect therein as a mere irregularity and when it also held that the Respondents had taken steps without raising any challenge on the processes at the earliest opportunity. He urged on the Court to discountenance that decision of the lower Court and to hold that the originating processes were incompetent and thereby deprived the lower Court of the requisite jurisdiction to determine the suit of the Respondent. He further urged on the Court to resolve issues 1 and 5 in favour of the Appellants and against the Respondent.
Issue 1 was formulated out of ground one of the grounds of appeal, while issue 5 was distilled out of ground 6 of the grounds of appeal. Issue one formulated on behalf of the Respondent is said to have been formulated out of grounds 1 and 5 of the grounds of appeal. it does not appear to fully align and synchronise with the formulation of issues 1 and 5 in the Appellants’ issues for determination. Be that as it may, in order to afford the Respondent the full opportunity of a hearing, I will proceed to consider the arguments and submissions of learned counsel Mr. Ihejirika, for the Respondent as his answer to the arguments of Mr. Fingilla, of counsel on issues 1 and 5. Learned counsel Mr. Ihejirika argued his issue one mainly at pages 3 to 5 of the Respondent’s brief of argument.
In opening his arguments on behalf of the Respondent, learned counsel maintained that the lower Court was right in treating the non–inclusion of the Respondent Counsel’s National Identification number (NIN) as an irregularity that cannot deprive it of jurisdiction to entertain same. According to learned counsel, to hold otherwise would amount to an undue reliance of technicalities which the Supreme Court discouraged in the case of IKECHUKWU V. NWOYE (2013) LPELR–22018 in the following words of Ogunbiyi, JSC;
“The quest is for justice; hence technicality which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technicality has long been done away with under our judicial system of adjudication and given to substantial justice as the prevailing order of the day.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
While also recalling the much touted rule in adjudication that the mistakes or sins of counsel should not be visited on the litigant, learned counsel Mr. Ihejirika relied on the case of WHEELS & BRAKES LTD V. ODO (2014) ALL FWLR (PT. 717) 773 at 787 to submit that it would amount to punishing the Respondent if the non–inclusion of the NIN of counsel on the originating processes is allowed to deprive the lower Court of jurisdiction to entertain his fundamental human right enforcement action. In order to re–inforce his position, learned counsel recalled part of the decisions of the lower Court at pages 66 and 74 of the record of appeal, where his readiness to furnish the lower Court with his NIN and his plea to include same on the originating process having been endorsed and put on record subsequent to which the lower Court also satisfied itself that learned counsel is a Nigerian duly qualified and licenced by law to practice law in Nigeria. According to counsel, the lower Court also found it inconsequential and even unnecessary for counsel to formerly endorse his NIN on the originating processes.
In another submission Mr. Ihejirika, of counsel tried to explain that there is nowhere in the NIN Regulations of 2017 that a provision is made for the consequences of failure to endorse NIN or Court processes except for the imposition of administrative fines as the only sanction. He argued that failure to endorse NIN on Court processes does by no means render such processes incompetent. He urged on the Court to so hold. In the opinion of learned counsel even if the failure to include the NIN on the processes has any consequence, it is a curable irregularity and the Appellants are deemed to have waived any right to complain against, having taken the significant step of filing a joint counter-affidavit. He urged on the Court to so find after he cited and relied on the cases of MTN (Nig) COMMUNICATIONS LTD V. ABUBAKAR (2015) ALL FWLR (PT. 766) 414 at 435 and ANYANWOKO V. OKOYE (2010) 5 NWLR (PT. 1188) 497 at 519.
In conclusion, learned counsel Mr. Ihejirika relied on the decision in OJUKWU V. REGD. TRUSTEES OF THE ASSOCAITION OF LUXURY BUS OWNERS OF NIGERIA. (2016) ALL FWLR (PT. 829) 1181 at 1202–1203 where it was held that:
“Failure to comply with the requirement of the rules in any respect, at the beginning or at any stage of the proceedings may be treated as an irregularity by the Court so that such non–compliance does not affect the validity of the proceedings. The treating of such non–compliance as an irregularity is at the discretion of the Judge. The discretion must be exercised judicially and judiciously, having regards to the facts and circumstances of each case.”
Upon this authority, learned counsel maintained that treating non–compliance with a rule as a mere irregularity is at the discretion of a Court and so long as the discretion was exercised judicially and judiciously, an appellate Court cannot interfere to substitute its discretion for that of a lower Court. He urged on this Court to resolve this issue against the Appellants.
Issue two was formulated out of ground 2 of the grounds of appeal and it is: –
“Whether the lower Court was right when it held that the Appellants’ joint counter-affidavit was incompetent and liable to be struck out…”
In arguing this issue, learned counsel Mr. Fingilla explained that it is correct that the 2nd Appellant herein, as the 2nd Respondent at the Court below deposed to and signed the joint counter-affidavit. Learned counsel submitted that this act of the deponent is not capable of rendering the joint counter-affidavit incompetent. He referred to paragraphs 3 and 4 of the joint counter-affidavit and argued that Section 119 (4) of the Evidence Act, 2011 is not applicable to the counter-affidavit because, the deponent had the full consent of the 1st and 3rd Appellants to state facts on oath on their collective behalf and there was no contrary fact or evidence that the deponent had no such capacity or authority. Added to that, according to learned counsel, it is only the 1st and 3rd Appellants herein that can challenge the capacity, or authority of the deponent to do so. Learned counsel referred to pages 54, 58, 63 and 65 of the record of appeal to explain that the 2nd and 3rd Appellants were present in Court during the entire hearing of the matter, while the 1st Appellant also attended on one occasion.
In trying to demonstrate that Section 119 (4) of the Evidence Act does not apply to the facts and circumstances herein, learned counsel reproduced the full text of the Section and pointed out that the deponent deposed to facts within her personal knowledge only and therefore there was no room for any facts from either the 1st or 3rd Appellants to sign the joint counter-affidavit because they were not the source of information for the deponent. Against the backdrop of this, learned counsel opined that the lower Court unduly relied on technicalities to exclude the Appellants from show casing their own side of the story. He urged on the Court to hold that the joint counter-affidavit substantially complied with the requirements of the law. He cited a number of decisions of the Supreme Court such as BUHARI V. INEC & ORS. (2008) LPELR 814 (SC) 202–203 E–A, AKIBU V. STATE (2019) LPELR–47630 (SC) 15–16 F–G and IKECHUKWU V. NWOYE & ANOR. (2013) LPELR–22018 (SC) 10 A–E, in which their Lordships of the apex Court recalled, approved and applied so many of their previous decisions which emphasised that Courts generally have deliberately shifted away from narrow technical approach to justice to now pursue the course of substantial justice. He urged on the Court to so hold and resolve this issue in favour of the Appellants against the Respondent.
In his response, Mr. Ihejirika, of counsel began by focussing and highlighting the basis and foundation of the decision of the lower Court in rejecting the joint counter-affidavit of the Appellants. After some explanations on what reasons the lower Court also considered, learned counsel urged on the Court to hold that because the deponent deposed to the affidavit in a language other than the language she understood rendered it incompetent. In the opinion of learned counsel, because of the different levels and extent of involvement of the Appellants in the events leading to this action, each of them should have separately deposed to their own counter-affidavit as neither of the 1st and 3rd Appellants had shown any reasons why they did not depose to their counter-affidavits.
While using the above as a spring board, learned counsel argued and maintained that the counter-affidavit failed to satisfy the requirements of Section 119 (4) (supra) because as joint counter-affidavit, it was not signed by the 1st and 3rd Appellants and it therefore remained incompetent. He urged on the Court to so hold and resolve this issue against the Appellants.
Learned counsel Mr. Fingilla, argued his issues 3 and 4 together at pages 13 to 17 of the Appellants’ brief of argument. In arguing the issues, learned counsel began by referring to the findings and conclusions of the lower Court at page 77 of the record of appeal, as part of its judgment that since the joint counter-affidavit of the Appellants was incompetent and of no moment, the only available evidence to determine the matter before it was the affidavit of the Applicant/Respondent. Learned counsel pointed out that it was against that finding that the lower Court deemed the affidavit in support as having been admitted by the Appellants and proceeded to determine the matter as an undefended action.
Further to and against the above observations of Mr. Fingilla, of counsel, he went on to emphasise that the lower Court was wrong to have held that in the absence of any counter-affidavit, minimal evidence was only required to tilt the scale in favour of the Respondent against the Appellants. According to learned counsel, the law is that even with nothing from the Appellants, the Respondent, as the Applicant was bound to prove by affidavit evidence, the infraction of his fundamental rights. Learned counsel emphasised that the averments in paragraphs 12 to 17 of the affidavit in support do not suffice to prove that the Respondent was detained, flogged and treated like a common criminal. He urged on the Court to so find. Learned counsel added that the law remains that he who asserts must prove by credible, compelling and admissible affidavit evidence that his fundamental rights were violated. He referred to the decisions of this Court in EBO & ANOR V. OKEKE & ORS. (2019) LPELR–48090 (CA) 18–19 F–E, AL–HASHIM V. TOM & ORS (2019) LPELR–47651 (CA) and OLUNTOBA V. GTB (2020) LPELR–49586 (CA) 36–37 D. And after extensively quoting from the decisions of their Lordships in the above cases, learned counsel argued and submitted that the lower Court failed in its primary duty to evaluate the affidavit evidence filed before it in arriving at a just and logical conclusion of the matter.
In conclusion, learned counsel used the whole of page 16 and part of page 17 of the Appellants’ brief of argument to set out part of the judgment of this Court in the case of YANKEY V. AUSTIN (2020) LPELR–49540 (CA) 26–31 C to emphasise and maintain that the lower Court woefully failed to discharge its primary duty of evaluating the evidence adduced before it. He urged on the Court to resolve these issues in favour of the Appellants.
Issues 3 and 4 in the Appellants’ brief of argument were formulated out of grounds 3, 4 and 5 of the grounds of appeal, while issue 3 of the Respondent’s issues for determination was formulated out of grounds 3 and 4 of the grounds of appeal. Issue 3 was argued at pages 9 to 13 of the Respondent’s brief of argument. In arguing his issue 3, learned counsel Mr. Ihejirika began by pointing out that in the circumstances of the instant appeal, the Appellants are deemed to have admitted the affidavit of the Respondent because their joint counter-affidavit had been adjudged as incompetent. Learned counsel added that where a Court finds merit in an affidavit, that would be enough proof to establish facts alleged in it and it is well established that what is admitted needs no further proof. In support of the above principles, learned counsel cited and relied on the cases of VGC MANAGEMENT CO. LTD. V. MEADOWS ESTATES LTD (2015) ALL FWLR (PT. 766) 483 at 500–501 and REPTICO SA GENEVA V. AFRI BANK PLC. (2013) 5 SCNJ 479 at 512.
In his further effort to define the perspective of the case of the Respondent and the findings of the lower Court, learned counsel explained that there is no required number of witnesses a party should call to establish its case because even a single credible witness is enough. He added that the affidavit of the Respondent having been found credible had established the infringement of his fundamental rights. Also, according to Mr. Ihejirika, of counsel, because the counter-affidavit of the Appellants was incompetent and of no moment, there was no challenge to the averments in the affidavit in support which also means that the Appellants did not join issues with the Respondent thereby making the case liable to being determined on minimal evidence only. He cited and relied on the cases of ADEWUYI V. ODUKWE (2005) ALL FWLR (PT. 278) 1100 at 112 and AHANONU V. CHUKWUEMEZIE (2016) ALL FWLR (PT. 829) 1008 at 1032.
After referring to the judgment of the lower Court as copied at pages 76–81 of the record of appeal, learned counsel recalled the well established principle in adjudication that evaluation of evidence and ascription of probative value is the primary function of a trial Court and unless the findings of a trial Court on the evidence before it are found to be perverse, it is not the business of an Appellate Court to interfere with those findings. Learned counsel maintained that there is nothing perverse in the findings of the lower Court in the instant appeal. He therefore urged on the Court to find that the lower Court properly evaluated the evidence before it.
In conclusion, Mr. Ihejirika, of counsel while replying Mr. Fingilla that the Respondent failed to establish that he was flogged, detained and humiliated, etc. pointed out that averments in an affidavit play a dual function as both pleadings and evidence. He then added that if the evidence of one witness is believed it would suffice. Against the backdrop of this explanation, learned counsel recalled the averments in paragraphs 15, 17 and 18 and submitted that the Respondent had shown by credible evidence that he was flogged 14 times and that the detention of the Respondent from 11.00am to 6.30pm violated his right to liberty and freedom of movement. He urged on the Court to so hold and resolve this issue against the Appellants.
RESOLUTION OF THE ISSUES IN THE APPEAL.
By virtue of the provisions of Section 1 (1) (u) of the Mandatory Use of the National Identification Number (NIN) Regulations, 2017 it shall be mandatory to link Court processes to be filed in Court in either civil or criminal matters with the NIN of the person doing the filing, be it the litigant himself or his counsel as the case may be. This is indeed a very novel provision of the law. It is such a very widely known and notorious fact capable of being judicially noticed that the issue of linking certain personal, private or official transaction with NIN is a very recent development in this Country. It is equally so widely known that people are now being compelled and given deadlines to register and obtain National Identification Numbers. The deadline is yet to expire. Nigerians are still at liberty to go out and register to obtain National Identification Numbers. No one is in violation of any law or regulations if before the expiration of the current deadline they had not registered for NIN or they do not have any. To the best of my knowledge none of the Rules of Court or the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 have recognised the provisions of Section 1 (1) (u) (supra) by having incorporated it as part of the rules of Court. I am aware that many Nigerians have been rushing to register for their NINs. It has been so frustrating to some as the facilities on ground have been less than satisfactory or effective to success in a mass exercise of that magnitude.
After having considered the originating processes in the instant matter, and having been fully satisfied that they had complied with the provisions of the Kebbi State High Court Rules and FHR (EP) Rules, 2009. I believe it is unnecessary to adjudge them as incompetent because such consequence has not been provided for in any enforceable law or regulations. It is a curable irregularity because counsel or the litigant may simply be asked to provide and insert any NIN, where available, on the processes, as required by Section 1 (1) (u) (supra). It is still not an offence known to any law to fail to have an NIN. It would therefore be wrong and prejudicial to the administration of justice to require a litigant or counsel to link Court processes with any NIN. It is also still possible for any litigant or counsel to even belatedly insert their NINs on processes which have already substantially complied with the very well known and extant rules of Court and which have already been filed.
In dealing with this issue, the lower Court remarked and held thus: –
“The Court is fully satisfied from the records at its disposal, that application’s lawyer has paid his practicing fees on 13/3/2020, 03:35pm. It is trite law that Courts will not punish litigant or visit that innocent litigant with the sin committed by his counsel unless it can be shown that the litigant was a party to the commission of the sin see SHELL PETROLEUM DEV. of NIG. LTD V AGBARA (2016) 2 NWLR Pt. 1496 Pg 353 at 411. Section 7 of the regulation which makes provision for non-compliance with the provisions of the Regulations and other regulations made pursuant the Act punished offenders by mandatory imposition of administrative fines and sanctions by the commission As argued by the applicant the respondents have taken steps without raising any attack on the processes at the earliest opportunity their slumber has automatically cured the defect if any.
Consequently, the issue of incompetence of the applicant process raised by the respondents is without merit is hereby discountenanced.”
After having read and considered the entire provisions of the National Identity Management Commission Act 2007 and Section 7 of the Regulations made pursuant thereto and Section 1 (1) (u) (supra) I have no iota of hesitation that the decision of the lower Court at pages 74 to 75 quoted above cannot be faulted and remain unassailable in my humble view. Issues 1 and 5 in the Appellants’ issues for determination are resolved in favour of the Respondent and against the Appellants.
On issue two of the Appellants’ issues for determination, I have read and considered the joint counter-affidavit of the Appellants at pages 21 to 24 of the record of appeal. in paragraph 2 thereof the deponent, 2nd Appellant herein, said
“That by virtue of my position as stated above I am quite conversant with the facts and circumstances deposed to herein.”
In paragraphs 3 and 4, the 2nd Appellant averred thus:
3. “That I have the consent and authority of both my mother (The 3rd Respondent) and that of the 1st Respondent to depose to this counter-affidavit.”
4. “That I deposed to this counter affidavit for myself and on behalf of the 1st and 3rd Respondents in this suit.”
The entire paragraphs of the joint counter-affidavit appears to me to be a narration of facts and events involving all the parties in the instant appeal, including the Respondent. When these facts and events are compared with those narrated by the Respondent in his affidavit in support there is a substantial similarity in the narratives of the Appellants and that of the Respondent, both in the precursor, main and collateral events. The only point of departure in the narratives is as to the events that happened between the Respondent and the 1st Appellant. The Respondent in paragraph 6 of the affidavit in support admitted that he “had an affair” with the 2nd Appellant in January, 2020. He failed to give any particulars. By the expression “had an affair”, in paragraph 6 it must be taken to mean that the Respondent had an illicit intercourse with the 2nd Appellant. He failed to give any details of the circumstances, even though he claimed that the 2nd Appellant had numerous boyfriends, he failed to categorically say that she was a common prostitute, even though in paragraphs 4 and 5 of the further affidavit, the Respondent had averred thus: –
“That I never proposed marriage to the 2nd Respondent and I never went to their house for any purpose.
That I know as a fact that the 2nd Respondent is a woman of easy virtue who once married and divorced, having one child and sleeping with many men”.
Granted that the 2nd Appellant ought to have recorded her statement or the facts in the joint counter affidavit in the language she speaks and understands, which I believe to be the Hausa language, and for same to be duly translated into the English Language and the requirements of illiterate jurat being administered, etc., as was decided for example, in the case of GUNDIRI V. NYAKO (2012) 1 SCNJ 73 at 103–195, I believe a special circumstance exists with respect to this action to necessitate a departure from the terms of that decision. This is a fundamental human rights action as well as a paternity dispute. It is not only the interests of the 2nd Appellant, her family and the Respondent that are involved. The interests of the unborn child must also be put in perspective as well as the interest of the state because there is a seeming allegation of the commission of crimes such as rape or adultery by a Muslim. To the extent that the 1st and 3rd Appellants had not disowned the 2nd Appellant or any of her averments in the joint counter-affidavit, even while they fully participated at the trial of this matter and also because some of the facts contained therein are true and correct when tested against the affidavit in support, the lower Court should have been a bit more circumspect and cautious in rendering the joint counter-affidavit as incompetent. After all, it is part of the duty of a Court of law to ascertain the truth and the whole truth in any matter before it arrives at its judgment therefor.
Also, according to Mr. Fingilla, of counsel, he prepared all the processes filed in Court on behalf of the Appellants. The Appellants trusted him to use his professional expertise and dexterity to defend them in Court. They are entitled to the best services. The Appellants had no direct responsibility in the preparation and filing of their defence. So much, and indeed everything, was within the exclusive direction of counsel. It is an axiomatic and cardinal principle in adjudication in this Country that the sins, mistakes or even incompetence of counsel, should not be visited on a litigant in appropriate circumstances. In view of the economic and social circumstances of the Appellants, I believe that they should not be punished for the wrongdoing or mistake of counsel with respect to the failure to record the averments of the 2nd Appellant in Hausa language and for it to be translated to the English language and any other requirements of the law or practice. I also believe that Section 119 (4) of the Evidence Act is not applicable to the joint counter-affidavit in issue in this appeal. The striking out of the joint counter-affidavit was erroneous and lacked any basis or foundation in the circumstance of the instant appeal. Issue two is therefore resolved against the Respondent and in favour of the Appellants. The order striking out the joint affidavit was wrongly made and it is set aside.
With respect to issues 3 and 4, even if the joint counter-affidavit of the Appellants would be of no moment as the lower Court believed it was so and the only evidence available to it being the affidavit in support, I believe that any such evidence must be evaluated and tested for it to be acceptable as establishing the violation of the fundamental human rights of the Respondent. In dealing with this issue, the lower Court observed and remarked thus:-
“What remains is the affidavit evidence of the applicant which in this circumstance is deemed admitted. This will entitle the applicant to the reliefs sought; see the case of AHANONU V. CHUKWUMEZIE (2016) ALL FWLR (Pt. 829) 1008 at 1032. In the eyes the law, there is no affidavit to counter the facts contained in the applicant’s affidavit.
This means that the respondents did not enter into defence hence they are deemed to have admitted the affidavit of the applicant. Proof in circumstance is minimal as in the imaginary scale, there is nothing on side of the defence with which the Court can weigh and measure evidence with those of the applicant. Therefore, minimum evidence is required to tilt the scale in favour of the applicant”.
As I observed above, that the narrative that must emerge from a careful perusal of the paragraphs of the affidavit in support is that his whole story is lacking in specificity and details. The Respondent had maintained in his affidavit that Exhibit A attached thereto was a valid and enforceable agreement but the lower Court denied itself the opportunity of knowing what happened to the undertaking of the Respondent in Exhibit A. It is true and correct, as pointed out by learned counsel Mr. Ihejirika at page 12 of the Respondent’s brief of argument, that as the matter between the 2nd Appellant and her family was before the Police and Exhibit A was in place to control the situation, the 1st Appellant had no business to interfere with the case, even to the extent described in paragraphs 25 to 27 in the joint counter-affidavit. Learned counsel Mr. Ihejirika had also alluded to the fact that the 1st Appellant is not a person in authority and possess no judicial powers as to impose punishment on the Respondent. This can be found in lines 21 to 22 at page 12 of the Respondent’s brief of argument. Why then did the Respondent choose to appear before the 1st Appellant if he knew that he had no authority over him or even the case that was already before the police as the relevant authority to handle it.
In paragraph 17 of the affidavit in support the Respondent had averred that the 1st Appellant had threatened to imprison him. This threat, even if it was made, was an empty one as the 1st Appellant totally lacked the capacity to actualise it. The Respondent must have voluntarily chosen to respond to the invitation by the 1st Appellant.
The capacity of the 1st Appellant to impose any punishment such as flogging or detention was not established by the Respondent as the status of the 1st Appellant was not shown to be more than “Amiru Zoramawa” in paragraph 3 of the affidavit in support. Amiru Zoramawa does not appear to be anything more than the surname and middle names of the 1st Appellant. Because paragraphs 18 to 23 of the joint counter-affidavit appear to be true, even when compared with the affidavit in support, I am inclined to accept that paragraphs 24 to 28 of the joint counter-affidavit are also correct, which therefore means that the Respondent was not ordered to be flogged, humiliated, treated as a common criminal or unlawfully detained by the 1st Appellant. Also, because one cannot be satisfactorily convinced that the Respondent was not being economical with the truth, I am unable to agree with the lower Court that there was any violation of any of his fundamental rights, even after a very careful perusal and full overview and consideration of the averments of the Respondent in the further affidavit in support of the motion for enforcement of fundamental rights. The Respondent appears to underrate the consequences of his one night stand with the 2nd Appellant. Whatever the circumstances were and however, what led to the Respondent “having an affair” with the 2nd Appellant, it is most unfortunate. He took advantage of her because as she claimed she loved him. Having an affair with a woman means that the Respondent had an illicit intercourse outside matrimony.
Ground 6 of the grounds of appeal complains that the judgment of the lower Court in the instant appeal was against the weight of evidence. This ground of appeal gave birth to the 5th issue for determination as formulated on behalf of the Appellants. When an appellant complains that judgment is against the weight of evidence it means that the judgment of the trial Court is against the weight of evidence adduced before that Court. In that case, the appellant is essentially saying that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence. In the face of such a complaint, an appellate Court is to consider the admissibility, relevance, credibility, conclusiveness and probability of the evidence by which the weight of the evidence of both parties is determined. See NWOKIDU V. OKANU (2010) 3 NWLR (PT. 1181) 362 at 394 to 395. Learned counsel Mr. Ihejirika, as noted above, failed to respond to this complaint of the Appellants. This failure did not help matters, as it would appear that the point had been conceded by the Respondent.
Against the foregoing, I am of the view that the attitude of the lower Court on the evidence before it lacked depth. It was off—handed and perfunctory. The assessment and evaluation of the evidence on record failed to adhere to the very well established parameters. The finding of the lower Court that there was any violation of any of the fundamental human rights was perverse and it occasioned a miscarriage of justice to the Appellants. Issues 3 and 4 are hereby resolved in favour of the Appellants against the Respondents.
Having resolved issues 1 and 5 against the appellants and issues 2, 3 and 4 in their favour, this appeal is allowed in part. The judgment of the Kebbi State High Court in Suit No. KB/HC/FHR/4/2020 delivered on 21st September, 2020 is set aside. No order for costs.
SAIDU TANKO HUSSAINI, J.C.A.: I had the advantage of reading in draft, the lead judgment delivered by my Lord, A.A.B. Gumel, PJCA with whom I agree in toto, the reasoning and conclusion.
I have nothing useful to add except that the judgment appealed against in suit No. KB/HC/FHR/4/2020 is hereby set aside with no order as to cost.
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MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother ALI. A B. GUMEL, JCA. I am in agreement with the reasoning and conclusion reached in allowing the appeal in part. The judgment of the Kebbi State High Court in suit No: KB/HC/FHR/4/2020 delivered on 21st September, 2020 is hereby set aside. No order as to cost.
Appearances:
Mr. A. A. Fingilla For Appellant(s)
Mr. Magnus Ihejirika For Respondent(s)