OJODOMO & ORS v. YARKWAN (2021)

OJODOMO & ORS v. YARKWAN

(2021)LCN/15499(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 31, 2021

CA/MK/96/2018

RATIO

TORT: CORE INGREDIENTS OF VICARIOUS LIABILITY

The law on vicarious liability is crystal as to the nature of responsibility which renders a person liable for the tort of another. It runs against the well-known rule of responsibility in tort which requires everyone to bear the consequences of his own action. The core features are: 1. A tort must be committed by one’s employee. 2. At the relevant time of the tort, the employee must be in the employment of the employer. 3. The tort must be committed in the course of employment of the employee and 4. Both the employer and the employee are joint tort feasors and are amenable to be sued by the victim.
The Supreme Court per MUHAMMAD, JSC at pages 27-28, paragraphs C-D in the case ofR. O. IYERE V. BENDEL FEED & FLOUR MILL LTD (2008) LPELR-1578 (SC) opined thus:
“The common law principles which govern the relationship of an employer and his employee in respect of tort committed by the latter is well stated in the Halsbury’s Laws of England vol. 45 (2) Fourth Edition, Paragraph 817: “where an employer expressly authorizes his employee to do a particular act which is in itself a tort, the employer is liable to an action in tort at the Suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority. Where the act which the employee is expressly authorized to do is lawful, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorize the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his own employer.” In 1952, Denning L. J (as he then was), stated the law as follows: “In all these cases it is of importance to remember that when a master employs a servant to do something for him, he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tortfeasor as well as the servant.” See the case of JONES V MANCHESTER CORPORATION (1952) 2 QB 852 at page 870. For the employer (master) to be vicariously liable, it is necessary to prove that his employee (servant) has been guilty of a breach of duty towards the person injured.” PER IGNATIUS IGWE AGUBE, J.C.A.

APPEAL: RELEVANCE OF A NOTICE BY WAY OF CROSS-APPEAL

EVIDENCE; ADMISSIBILITY OF A PUBLIC DOCUMENT

The law is settled and there are several decisions of the Apex Court and this Court to the effect that the original of a public document is not only admissible in evidence but also the best admissible evidence of the document, see the case of ONOBRUCHERE VS. ESEGINE (1986) 1 NSCC 343, 356, ITEOGU VS. LPDC (2009) 17 NWLR (PT. 1171) 614 SC.
The Supreme Court in the case of PDP VS. INEC (2014) 17 NWLR (PT.1437) AT PAGE 563 PARA B-C in no uncertain terms, unequivocally reaffirmed that the only categories of public documents that are admissible are either the original documents themselves or, in the absence of such originals, Certified Copies and no other. PER IGNATIUS IGWE AGUBE, J.C.A.

WORDS AND PHRASES: GROUND OF APPEAL

The law is trite that a Ground of Appeal is a Statement by which an Appellant complains of the error or mistake committed in the process of ascertaining the law or the application of the law to disputed or proved facts or that the Court had misdirected itself or was in error in the course of appraising the evidence before it, thereby arriving at a wrong or perverse decision. In the words of the learned Law Lord of the Apex Court, NIKI-TOBI, JSC at pages 65-66, paragraphs E-A in the case of DAGACI OF DERE & ORS V. DAGACI OF EBWA & ORS (2006) LPELR-911 (SC):

“A Ground of Appeal is the complaint the Appellant has on the decision of the lower Court. By the Ground of Appeal, the Appellant tells the Appellate Court that he is not satisfied with the judgment of the trial Court and he spells out clearly the specific area he is not satisfied with. An Issue raised in an Appeal affecting the decision of the lower Court must be backed by a Ground of Appeal. Where there is no Ground of Appeal supporting the Issue raised. It will be discountenanced or rejected by the Appellate Court. Grounds of Appeal are the taproots of the case on Appeal as they lay the foundation upon which the case grows in the Appellate Court to fruition.”
Sequel to the above, it is settled that Grounds of Appeal ought to and of necessity be couched in accordance with the prescribed formats provided under Order 7, Rule 2 (2) and (3) of the Court of Appeal Rules, 2016. A scrupulous perusal of the Records would reveal that apart from Grounds 1 and 7 of the Appellants’ Notice of Appeal, Grounds 2, 3, 4, 5 and 6 are seemingly in the nature of narratives and same shall be reproduced hereunder for purposes of clarity and emphasis” PER IGNATIUS IGWE AGUBE, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. ONUH OJODOMO 2. THE NIGERIAN ARMY 3. THE CHIEF OF ARMY STAFF (FEDERAL REPUBLIC OF NIGERIA) APPELANT(S)

And

TERNA YARKWAN RESPONDENT(S)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Federal High Court of Justice, Holden at Makurdi in Suit No.FHC/MKD/CS/61/2016 delivered per HON. JUSTICE HASSAN DIKKO, on the 21st day of June, 2017 against the Nine (9) Respondents ((1) Onuh Ojodomo, (2) The Nigerian Army (3) Chief of Army Staff, Federal Republic of Nigeria (4) O.A. Otor (DSP), (5) D.I. Tyokase, (6) Anikpa Terhemba, (7) Ministry of Interior, Federal Republic of Nigeria, (8) Comptroller General of Prisons, Federal Republic of Nigeria and (9) Attorney-General of the Federation) who were sued by the Applicant (now Respondent) for the alleged breach of his fundamental rights. Dissatisfied with the decision of the Trial Court, the 1st -3rd Appellants only (who were the 1st – 3rd Respondents in the Lower Court), invoked the jurisdiction of this Court by filing a Notice of Appeal dated 12th September, 2017 predicated on Seven (7) Grounds on the 14th September, 2017 which grounds are hereunder reproduced albeit without their respective particulars.
“GROUNDS OF APPEAL
GROUND ONE (MISDIRECTION):
The Lower Court misdirected itself in law when it presumed the existence of the alleged torture and injury to the Appellant’s right eye as flowing from the Applicant’s arrest and thereby occasioning a grave miscarriage of justice.
GROUND TWO (MISDIRECTION):
The Trial Court misdirected itself when it held thus at page 31 of the Judgment: “I examined the depositions on Further Affidavit by the Applicant in response to the 1st, 2nd, 3rd, and 7th Respondents and find paragraphs 8, 9, 10 and 15 thereto relevant. Affidavit depositions which regularized the Applicant’s admission letter Exhibit “2”, Certificate of Compliance with electronic evidence Exhibit “3” and regularization of Exhibits “C”, “D” and “E” now as Exhibit “4”.” At pages 33/34 “I closely scrutinize the Affidavit in Support as it affects the 1st to 3rd and to the 7th Respondents, the Counter-Affidavits and the deposition in the Further Affidavit by the Applicant and find out that, upon the regularization of the Applicant’s Documents that is Exhibits “1”, “2”, “3” and “4”…”
GROUND THREE (PERVERSE JUDGMENT):
The Trial Court upheld a perverse Judgment at page 17 of CTC of Judgment: “In the light of the Statement of Claim by the Applicant, and the depositions from the Affidavit in Support, it is apparent that the 1st, 4th, 5th, and 6th Respondents are staff of the Nigeria Prison, Gboko and are allegedly involved in beating and causing injury on the right eye of the Applicant, I so hold.” At page 24 of the CTC of Judgment: “I also examined Exhibits “D” which depicts pictures of the Applicant showing stains of blood into his right eye, thus it is my considered view and I so hold that the combination of the Affidavit evidence and the Exhibit (supra) constitute a sufficient material evidence to enforce his fundamental rights against the 1st, 4th, 5th, and 6th Respondents and their principals that is the 1st, 7th, 8th and 9th Respondents to answer…” At page 44 of the CTC of Judgment: “An Order for the Respondents to individually and severally pay to the Applicant the sum of N5,000,000.00 (Five Million Naira) only as general damages for unlawful arrest and torture.”
GROUND FOUR (MISDIRECTION):
The Lower Court misdirected itself when it held thus at page 34 of CTC of Judgment: 1st Paragraph: “Paragraphs 9, 10, 17, 18 of the 1st to 3rd Respondents’ Counter-Affidavit which seek to justify the arrest and torture of the Applicant are hereby discountenanced. 2nd Paragraph: “Paragraphs 7 and 13 of the 1st to 3rd Respondents Counter-Affidavit which seek to justify arrest and torture of the Applicant are hereby discountenanced.”
GROUND FIVE (ERROR IN LAW):
The Trial Court erred in law when it held at page 24 of CTC of Judgment: “…and I so hold that, the combination of the Affidavit evidence and the Exhibits (supra) constitutes a sufficient material evidence to enforce his fundamental rights against the 1st, 4th, 5th, and 6th Respondents and their principals that is 1st, 7th, 8th and 9th Respondents to answer…” The Trial Court in the same Judgment at page 44 gave “An Order for the Respondents to individually and severally pay the Applicant the sum of N5,000,000.00 (Five Million Naira) only as general damages for unlawful arrest and torture.”
GROUND SIX (ERROR IN LAW):
The Trial Court erred in law when it held at page 35 CTC of Judgment: “It is my considered view and I so hold that hence the 1st Respondent participated in the arrest of the Applicant, already viewed the Applicant to have a violent posture against the 4th Respondent, and hence the 1st Respondent took the Applicant into the Gboko Prison premises, the 1st Respondent cannot be heard of saying he is not involved in the manhandling of the Applicant without contrary admissible evidence, my irresistible conclusion is that, the 1st Respondent fully participated in the arrest, torture and injury to the Applicant’s right eye. I so hold.”
GROUND SEVEN:
The Judgment given by the Trial Court is against the Weight of evidence.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
(i) An Order allowing this Appeal.
(ii) An Order setting aside the Judgment of the Trial Court and entering Judgment in favour of the Appellants.
(iii) Any further Order(s) as the Court may deem fit and proper to make in the circumstances of this case.”

On the 15th of September, 2017 the 4th Respondent in the Lower Court (O.A. Otor (DSP) also filed his Notice of Appeal with Six (6) Grounds dated 12th day of September, 2017. However, the 4th Respondent/Appellant did not file any further processes apart from the Motion for stay of execution of the Judgment of the Lower Court and having not pursued the Appeal to its logical conclusion same is deemed abandoned. The 5th to 9th Respondents in the Lower Court made no attempt to appeal against the said Judgment of the Lower Court and accordingly the only extant Appeal is that filed by the 1st to 3rd Respondents (now Appellants).

STATEMENT OF FACTS:
The Applicant/Respondent at the Lower Court, initiated the Suit leading to this Appeal by way of Originating Motion dated 24th June, 2016 for the Enforcement of his Fundamental Rights under Sections 34(1), 35(1), 36(1) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) praying for the following Reliefs against the Respondents/Appellants thus:-
“1. A DECLARATION that the Applicant is entitled to his Fundamental Rights to Dignity of Human Person,

Personal Liberty, Freedom of Movement and Right to Life.
2. A DECLARATION that the arrest, torture and detention of the Applicant at the Nigerian Prison, Gboko on the 25th day of May, 2016 from 9:00am to 3:30pm without any justification is illegal, unlawful and constitute the breach of Applicant’s Fundamental Rights to Dignity of Human Person, Freedom of Movement, Fair Hearing and Right to Life.
3. AN ORDER of perpetual injunction restraining the Respondents from further arresting, detaining and torturing the Applicant in similar circumstances stated in paragraph 2 above.
4. AN ORDER awarding the Sum of N200,000,000.00 (Two Hundred Million Naira) only against the Respondents jointly and severally in favour of the Applicant as general damages/compensation for the unlawful arrest, detention and torture of the Applicant without any justification.
5. AND for such further Order or Orders as this Honourable Court may deem fit under the circumstances of the case.”
See pages 1 to 3 of the Records.

The Originating Motion was supported by a Statement containing the names and description of the parties as well as the Reliefs sought and Eleven (11) Grounds upon which the Reliefs were predicated. The Motion was also supported by an Affidavit of 26 paragraphs deposed to by the Applicant now Respondent to which documents marked Exhibits “A” to “I” were annexed. The Motion was also supported by a Written Address. Upon being served with the Originating Processes, the 7th Respondent filed a Notice of Preliminary Objection on the 17th day of August, 2016 praying for its name to be struck out as the Applicant/Respondent had no cause of action against it (See pages 42-53 of the Records). The 1st, 2nd and 3rd Respondents/Appellants filed their Counter-Affidavit on the 25th day of August, 2016 (See pages 61-72 of the Records). Applicant’s Further Affidavit to 1st, 2nd, 3rd and 7th Respondents’ Counter-Affidavit filed on the 2nd day of September, 2016 can be found at pages 79 to 90 of the Records while the Applicant’s Reply on Points of Law to the Preliminary Objection of the 7th Respondent was filed on the 2nd day of September, 2016 (See pages 91 to 94 of the Records). The 4th, 5th and 9th Respondents eventually filed their Counter-Affidavits while the Applicant also filed a Further Affidavit to the 4th and 5th Respondents’ Counter-Affidavit as well as that of the 9th Respondent. On the 7th of October, 2016, the Applicant’s Written Address on Points of Law in response to the 9th Respondent’s Notice of Preliminary Objection was filed.

As can be gleaned from the Records particularly the Grounds upon which the Applicant’s Reliefs were sought and indeed the supporting Affidavit, he claimed to have been arrested, detained and tortured by the 1st, 4th, 5th and 6th Respondents on the directives of the 2nd, 3rd, 7th, 8th and 9th Respondents who were the Superiors of the former at the Nigerian Prisons, Gboko, Benue State. According to him, on the 26th day of May, 2016 he, in his black and white uniform was to travel in his car to Makurdi to attend lectures in the Faculty of Law, Benue State University. He branched to a shop opposite the Nigerian Prisons, Gboko, parked the vehicle and proceeded to photocopy a handout for lectures but was confronted by the 4th Respondent that his vehicle was wrongly parked and should be adjusted. It was his further case that he complied with the directive but the 4th Respondent became annoyed that he (the Applicant) reluctantly complied with his (4th Respondent’s) directive whereby the 4th Respondent invited the 1st, 5th and 6th Respondents who jointly arrested him (the Applicant) and took him to the prison yard where the 1st, 2nd and 3rd Respondents parked their Armoured Car with four soldiers in uniform carrying guns as well as horse whip. At the command of the 1st, 4th, 5th and 6th Respondents, a general torture/beating of the Applicant according to him, started from 9 a.m to 10 a.m and when the Applicant became too weak to cope with the torture he was thrown into stagnant water within the Prisons’ premises to lie there and he lay in the said water till 3 p.m when the above named Respondents brought dry leaves and forced him to hold the leaves in his hands and he was snapped and eventually released with the threat that if the Applicant ventured to report them to any constituted authority, they would allege that he was caught with Indian hemp and justify their actions as punishment to the Applicant.

The Applicant also claimed that the Respondents (now Appellants) injured him in his right eye as well as inflicted bruises all over his body with whip lashes marks. He further alleged that the Respondents stripped him naked leaving him with his pant before a crowd of over 200 people who came to watch the militant activities of the Respondents against him who was helpless in the face of Armoured Car and assorted guns. The Applicant claimed further that he believed that the action of the Respondents as stated above were illegal, unwarranted, inhuman, unconstitutional, barbaric and did not only amount to abuse of public office but also constituted a breach of his rights which called for a Court’s intervention otherwise the Respondents would constitute themselves as over lords and above the law whereas it is his belief that no person including the Respondents are above the law which treats people equally irrespective of one’s high ranking position or office in society as the law is no respecter of person.

He also believed that he did not commit any offence to have warranted the Respondents to treat him in the manner they did having complied with the instruction to adjust the parking of the vehicle which appeared to be the subject matter of his torture. It was also his belief that as an harmless citizen, he cannot confront the Military to retaliate but counts on the Court as his last resort where his rights can be vindicated and the Respondents will be shown that there is in existence the Rule of Law in Nigeria.

It was his further assertions that his detention from 9 a.m. to 3p.m. in an unhygienic condition with lashes and wounds all over his body and with an injured eye and only in his pant without food nor water, with bodily and psychological torture, lowering his dignity of human person in the midst of 200 people watching him as a common criminal when he carried with him the personality of a Law Student which was unknown to the crowd, amounted to flagrant breach of his rights to dignity of human person, liberty and life.

Finally, he claimed that as a result of the damage caused him by the Respondents, he (the Applicant) incurred financial expenses in treating himself at several Hospitals particularly his right eye and that the powers of the Respondents are limited by the Constitution.

On the part of the Respondents/Appellants, the 7th Respondent then at the Court below filed a Notice of Preliminary Objection on the 17th of August, 2016 praying the Court to strike out its name from the Suit and for such further Order(s) as the Court may deem fit to make in the circumstances. The Grounds for the Objection were that the Applicant’s Affidavit in support of his Originating Motion did not disclose any cause of action against it and that the 7th Respondent (Ministry of Interior, Federal Republic of Nigeria) is/was not a juristic person known to law and thus could not be sued nor can it maintain an action. The Preliminary Objection was backed up with a Written Address. See pages 45 to 49 of the Records. In the Counter-Affidavit deposed to by one Ekeh Ethelberth, a Higher Executive Officer in the Legal Unit of the 7th Respondent/Ministry on behalf of the 7th Respondent, he averred that the Applicant’s action was in connection with his (Applicant’s) apprehension/arrest in front of the Nigerian Prisons, Gboko, Benue State, while trying to photocopy a document in an opposite Business Centre. He claimed that the 7th Respondent was not in control of the activities of the 1st, 4th, 5th and 6th Respondents, who allegedly detained the Applicant.

It was also the further defence of the 7th Respondent:
“c. That the 1st, 4th, 5th and 6th Respondents are not Officers/Staff of the 7th Respondent.
d. That the 7th Respondent was never involved in all that transpired leading to the institution of this Suit.
e. That the 7th Respondent was never aware of this case before Court processes were served on us.
f. That I know the 7th Respondent cannot sue or be sued in any action.
g. That the Suit does not show any cause of infringement of the Applicant’s Fundamental Rights by the 7th Respondent.
h. That the 7th Respondent prays this Honourable Court to strike out this Suit against it.
i. That the Applicant will not be prejudiced if the name of the 7th Respondent is struck out of this Suit.”

As for the 1st, 2nd and 3rd Respondents, Lieutenant Nuruddin Mohammed Maiyasin, an Army Officer attached to 72 Special Forces Battalion, Makurdi where the 1st Respondent is based and deployed under the command of the 2nd and 3rd Respondents, deposed on behalf of the 1st, 2nd and 3rd Respondents as follows:-
“4. That save and except as hereinafter expressly admitted, the 1st, 2nd and 3rd Respondents deny every allegation of fact stated in the Applicant’s Supporting Affidavit.
5. That there is indeed an Armoured Personnel Carrier consisting of Four Soldiers who were stationed at the Nigeria Prisons, Gboko, Benue State to provide physical Security, check any breach or suspected breach up to 300 meters from the facility in assistance to the Prisons Security protocol.
6. That the said Military Crew at all times are stationed at the premises in alertness in case the Prisons Security Officers are overwhelmed at any time.
7. That investigation by my Office on the matter which I verily believe revealed that the Department of State Services, Makurdi had recently warned on threat of attack on Gboko Prisons over the possibility of a jail break to the effect that alertness level should be heightened.
8. That the 1st Respondent or any of the Soldiers posted to the Gboko Prisons has never known the Applicant or done any transaction whatsoever with him prior to the Security incidence in the Prisons arena on the 25th May, 2016.
9. That the 1st, 2nd, and 3rd Respondents deny paragraph 2 of the Applicant’s Affidavit in Support and state that Exhibit “A” (purported Statement of Result of the Applicant) is a Public Document and the said Exhibit “A” is not a Certified True Copy.
10. The 1st, 2nd, and 3rd Respondents deny paragraph 3 of the Applicant’s Affidavit in Support and state that Exhibit “B” (the purported Admission Letter and evidence of Payment of School Fees) are computer generated documents.
11. That the said Documents in 10 above are not attached to a Certificate verifying the Computer that generated them.
12. The 1st, 2nd and 3rd Respondents deny paragraphs 4-8 of the Applicant’s Affidavit in Support and state that they do not have knowledge of such occurrences and that those paragraphs have nothing to do with the 1st, 2nd and 3rd Respondents.
13. That the said 1st Respondent, Onuh Ojodomo who was at an alert noticed that the Applicant, Terna Yarkwan had parked his car somewhere within the radius of their security surveillance on the said 25th May, 2016.
14. The 1st, 2nd and 3rd Respondents deny paragraphs 9-11 of the Applicant’s Supporting Affidavit and state that upon invitation by the 4th Respondent, the 1st Respondent arrested and handed over the Applicant to the Prisons authorities at the point he saw the Applicant jack the 4th Respondent by the shirt collar in a violent fight; and returned back to his post.
15. That the 1st Respondent deemed it expedient to intervene immediately he was alerted of the situation to avert any unforeseen circumstances and disengaged the Applicant from his violence that posed a threat to his life, that of his colleagues, the Prison building and environment in general.
16. That the 1st, 2nd and 3rd Respondents deny paragraphs 12-13 of the Applicant’s Affidavit in Support and state that the 1st Respondent was not involved in beating or torturing the Applicant or any other person whatsoever.
17. The 1st, 2nd and 3rd Respondents state that Exhibits “C”, “D” and “E” (the Digital Pictures of the Applicant) are not attached to any Certificate verifying the Computer that generated them.
18. The 1st, 2nd and 3rd Respondents further state that Exhibits “F” and “I”, the General Hospital in-patient Notes and the transaction receipt are not certified copies of public documents.
19. That the 1st Respondent did not know anything that happened with the Applicant as he returned to his post once he handed him to the Prison authority but was later informed that the search revealed some ‘Indian Hemp’ in the possession of Applicant.
20. That the Applicant and his counsel reported the matter to the Commanding Officer of the 1st Respondent Office who gave them an appointment based on the report which they rebuffed.
21. That the incidence is solely within the ambit of the Prisons authority that have nothing to do with the 1st, 2nd and 3rd Respondents.
22. That it shall be in the interest of justice to refuse the Applicant’s prayers against the 1st, 2nd and 3rd Respondents.
23. That I depose to this Counter-Affidavit in good faith believing the contents to be true and correct in accordance with the provision of the Oaths Act.”
See pages 61 to 63 of the Record of Appeal.

At pages 101 to 104 of the Records, there is a Counter-Affidavit of the 4th – 5th Respondents deposed to by O.A. Otor, DSP/4th Respondent thus:-
“1. That, I am the 4th Respondent in this case as such I am conversant with the facts and circumstances herein deposed.
2. That, I am a Staff of the Nigerian Prisons Service with primary assignment at the Nigerian Prisons, Gboko, Benue State likewise the 5th Respondent.
3. That, I am in charge of Discipline Adjudication (DSP) and I have served the Prisons Authority for a number of years.
5. That, I have been served with Applicant’s Originating Processes in this Suit, and that having gone through Applicant’s Supporting Affidavit I have discovered that all of the averments as therein contained are totally false and I hereby deny the Applicant’s storyline same being untrue.
6. That, particularly, paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of Supporting Affidavit as well as the Exhibits attached are accordingly denied as same are false.
7. That, sometime in the early part of this year, our Prisons Authority received intelligence from the Department of State Services, Makurdi, warning the Prisons Authority about threats of attack on the Gboko Prisons by some gang of notorious armed robbery suspects who had robbed a bank in Katsina-Ala Town in Katsina-Ala Local Government Area of Benue State.
8. That, the trial of eight (8) of the notorious armed suspects accused of the crime was scheduled to commence on 5th March, 2014 at the Benue High Court of Justice, Katsina-Ala.
9. That, the armed robbery suspects who were hitherto at the Police Headquarters, Makurdi were on 2nd March, 2014 transferred from Makurdi to the Gboko Prisons for custody pending their trial, since the Gboko Prisons is the closest detention facility to Katsina-Ala, the venue of trial.
10. That, by the intelligence report, there were series of security threats of Prisons attack and possibilities of jail-break from the co-armed robbery suspects who were yet to be arrested. The planned attack was reportedly designed to have taken different forms and shapes: from direct attack on the prison facility, to ambushing of the vehicles conveying the suspects to Katsina-Ala from Gboko, for the trial.
11. That, in view of the negative security implication, the intelligence report advised that physical security measures within the Gboko Prisons area be beefed up, escort should accompany the suspects to and from the Prisons and Court premises throughout the duration of the criminal trial at the High Court of Justice, Katsina-Ala. This intelligence was conveyed to the Gboko Prisons authorities in a circular with Reference No.S.86/1399 and dated 4th March, 2014. A Certified True Copy of the circular is hereto attached as Exhibit “OTOR 1”.
12. That, following Exhibit “OTOR 1” above was a second security alert titled: Re-emergence of improvised explosive device, threats by Boko Haram sect, dated 22nd March, 2014, Reference No.5 221/1316 and received by authority of the Gboko Prisons, on the 4th April, 2014. A Certified True Copy of the circular is also hereto attached as Exhibit “OTOR 2”.
13. That, the Gboko Prisons facility is unfortunately located in the heart of Gboko town with high risk security implication since a major road way passes through the Prisons premises where all traffic ply throughout the day and night.
14. That, owing to the adverse location of the Gboko Prisons, the Prisons Authority has imposed uncomfortable course of meanderings in the public roadway by use of segmented road blocks in the Prisons vicinity to slow down speed limit of vehicular traffic extremely, at all times.
15. That, the Security alertness regime has been in place since 2014 to date.
16. That, owing to the insecure nature of the Gboko Prisons facility, an armed personnel carrier consisting of four (4) soldiers has been permanently stationed on the Prisons premises to provide physical security in ready combat against any suspected security breach of up to 300 meters from the Prisons location. The armed personnel assist the Prisons Security protocol. These military crews are the fall-back in case the Prisons Officers are eventually overwhelmed.
17. That, on the fateful day of 25th May, 2016, Applicant had wrongly parked his strange car (Toyota Jeep) somewhere within the radius of the security surveillance, this development was considered a serious security concern.
18. That, having sighted the development, I approached the Applicant. Rather than correct himself, the Applicant, even without the slightest compunction, grew uncomplimentary, went wild, and consequently jacked me by my uniform collar with a violent rage. I became lost.
19. That, with the ample assistance of the 1st Respondent, Applicant was overwhelmed and moved into the Prisons premises for interrogation, only for the Applicant to be found in possession of substance suspected to be hemps and cannabis.
20. That, having identified himself as a Student, the Prison authority grew sympathetic, reprimanded the Applicant and refrained from taking adverse Police action against the Applicant more so that he had written an undertaking to be of good behaviour.
21. That, after the incident of 25th May, 2016, to the greatest surprise of us the 1st, 4th, 5th and 6th Respondents, Applicant took out a criminal Writ and filed direct Criminal proceeding against us before the Chief Magistrate’s Court 1, Gboko in case No.MCG/PP/66C1/2016 which is still pending. Attached Exhibit “OTOR 3” is a Certified True Copy of the Court process.
22. That, as if this is not enough, we have been served with the process in this Suit.
23. That, I, O.A. OTOR, do solemnly and sincerely declare that I make this Solemn Declaration conscientiously believing same to be true and by virtue of the Oaths Act, 2004.”

The 4th – 5th Respondents’ Counter-Affidavit was accompanied with documents marked Exhibits “OTOR 1” – “OTOR 3” and a Written Address.

The 6th and 8th Respondents did not file any Counter-Affidavit and as for the 9th Respondent who is the Attorney-General of the Federation he was said to have filed a Counter-Affidavit which however cannot be found in the Records in spite of the fact that in paragraphs 34 to 42 of the Applicant’s Further Affidavit to the 4th and 5th Respondents’ Counter-Affidavit as well as the 9th Respondent’s, the Applicant had reacted to the depositions of the 9th Respondent’s Counter-Affidavit.

At the conclusion of hearing, the learned Trial Judge after painstaking consideration of all the Affidavits and Counter-Affidavits as well as their respective annexed Exhibits, held that the Applicant/Respondent’s rights to dignity of the human person and personal liberty were infringed by all the Respondents. The trial Court further issued a perpetual injunction against them and awarded the sum of Five Million Naira (N5, 000,000.00) as damages/compensation which was to be paid jointly and severally by all the Respondents to the Applicant/Respondent.

It would be recalled that on the 15th of September, 2017, the 4th Appellant (O.A. OTOR, DSP) also appealed against the above decision of the Court below but no processes were filed before this Honourable Court to prosecute the Appeal and accordingly the Notice of Appeal was deemed abandoned. The 1st – 3rd Appellants also filed an Application on the 15th September, 2017 pursuant to Order 32(1) of the Federal High Court (Civil Procedure) Rules and under the Inherent Jurisdiction of the Lower Court for:
“An Order staying execution of the Judgment of this Honourable Court delivered on the 21st of June, 2017 in Suit No.FHC/MKD/CS/61/2016 pending the hearing and determination of the Appeal AND other Order(s) the Honourable Court may deem fit to make in the circumstances of this Suit.
FURTHER TAKE NOTICE that the Applicants have appealed the decision of this Honourable Court in this Suit.”

The Application was supported by an Affidavit of 10 paragraphs deposed to by One SSGT Sa’adu Yakubu (a Military Personnel attached to the Office of 72 Special Forces Battalion, Makurdi) and a Written Address as well as Document marked Exhibit “A”.

Upon the transmission of the Records of Appeal and entry of the Appeal on the 20th day of April, 2018, the learned Counsel to the Appellants, Genevieve Ike, Esq. who settled the Appellants’ Brief of Argument dated and filed on the 16th day of May, 2018 distilled Five (5) Issues for determination as reproduced hereunder:-
“1. Whether the Trial Court was right to admit and ascribe probative value to documents attached to the supporting Affidavit of the Respondent (Applicant then), being documents referred to as Exhibits by the Respondent (Applicant then) that is inadmissible in law?
2. Whether the Lower Court was right in awarding the Claims of the Respondent (then Applicant) against the 1st, 2nd, and 3rd Appellants, when the Respondent (then Applicant) never proved his case against them?
3. Whether it was not a perverse decision for the Lower Court to exonerate the 2nd and 3rd Respondents (2nd and 3rd Appellants now), wrongly holding the 1st Respondent to be a Staff of the Nigeria Prison, Gboko and still put a blanket liability on all respondents?
4. Whether the Lower Court was right to draw a conclusion of torture and eye injury of the Applicant then against the 1st Respondent (1st Appellant now) without any evidence whatsoever to same?
5. Whether the Judgment given by the Trial Court is not against the weight of evidence?”

The learned Counsel to the Respondent, Stephen Shimahile, Esq. who settled the Respondent’s Brief of Argument dated and filed on the 12th day of December, 2018 but deemed properly filed and served on the 25th January, 2021 distilled 2 (Two) Issues for determination to wit:-
“1. Whether on the totality of the admissible evidence adduced before the Trial Court, the Court was right to hold that the Appellants unlawfully arrested and/or tortured Applicant/Respondent which led to the injuries found on his body and the eye in particular. (This Issue shall cover Grounds 1, 2, 4, 6 and 7 of the Grounds of Appeal).
2. Whether it was not a perverse decision for the Lower Court to exonerate the 2nd and 3rd Respondents (2nd and 3rd Appellants now), wrongly holding the 1st Respondent to be a Staff of the Federal Prison, Gboko and still put a blanket liability on all Respondents. (This Issue shall cover Grounds 3 and 5 of the Grounds of Appeal).”

The learned Counsel to the Respondent also incorporated a Notice of Preliminary Objection in the Respondent’s Brief of Argument in paragraph 4.00 whereof he raised the Issue of competency with regards to the Grounds and Notice of Appeal which is predicated on the following:-
“(i) Firstly, all the Grounds of Appeal contained in the Notice of Appeal dated and filed on 12th September, 2017, except the Omnibus Ground (Ground 7), are incompetent as they violate the provisions of Order 7, Rule 2(3) of the Court of Appeal Rules, 2016. The Grounds are in their entirety narratives and/or arguments, devoid of precision and incurably defective, and therefore liable to be struck out.
(ii) Secondly, Issues 1, 2, 3 and 4 distilled from Grounds 1, 2, 3, 4, 5, and 6, being incompetent Grounds, are themselves incompetent. Any Issue for determination which is based on incompetent Grounds of Appeal is at large and goes to no Issue. Such Issue is liable to be struck out as being worthless.
(iii) Thirdly, Issue 1 of Appellants’ Issues contain arguments on points of law or Issues not supported by any Ground of Appeal stated in the Notice of Appeal contrary to Order 7 Rule 4 of the Court of Appeal Rules, 2016 and is therefore incompetent.”

Upon the receipt of the Respondent’s Brief, the learned Counsel to the Appellants, on the 18th of December, 2018 filed the Appellants’ Reply Brief to the Respondent’s Brief of Argument on Points of law but deemed properly filed and served on the 25th day of January, 2021.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 1 (ONE):
“WHETHER THE TRIAL COURT WAS RIGHT TO HAVE ADMITTED AND ASCRIBED PROBATIVE VALUE TO THE DOCUMENTS AS STATED IN GROUND TWO OF THE NOTICE OF APPEAL, BEING DOCUMENTS REFERRED TO AS EXHIBITS BY THE RESPONDENT (APPLICANTS THEN), THAT ARE INADMISSIBLE IN LAW?”

The learned Counsel for the Appellants, in canvassing the Appellants’ Issue one contended that the Respondent filed an Originating Process on the 2nd of July 2016 and by a Supporting Affidavit evidence tendered documents which can be seen at pages 30-39 of the Records and that on the 25th of August 2016, the 1st, 2nd and 3rd Appellants filed and served their Counter-Affidavit and a Written Address on the Respondent. Pages 61-71 of the Records referred. The above Counter-Affidavit according to the learned Counsel, identified and challenged the irregularity of all the Exhibits tendered by the Respondent. He urged this Court to expunge all the Exhibits tendered by the Respondent as inadmissible by their non-compliance with Sections 84, 104, 105 of the Evidence Act, 2011.

It was his argument that the Respondent could not remedy the statutory misdeed of not tendering Certified True Copies of Public Documents and Certificate of Compliance for Electronically Generated Documents and there was no formal application before the Lower Court for the regularization of the said documents. Still on the above score, according to the learned Counsel for the Appellants, the Respondent later filed some Annexures attached to the Written Address and that what ought to have been disputed was that, having been challenged, the Applicant was only supposed to give the Trial Court the reasons why the originally tendered documents should be admitted but not to go back and produce new documents in place of the already tendered ones.

On the above contention, it was the submission of the learned Counsel for the Appellants that in reply to the Respondent’s Further-Affidavit to the 1st, 2nd and 3rd Appellants, it was wrong in law to withdraw Exhibits after Issues have been joined as the Lower Court relied on inadmissible documents to favour the Respondent. Hence the Respondent cannot eat his cake and have it intact in his hands as it was not their (Appellants’) duty to diligently and legally prosecute the case of the Respondent as he (the Respondent) had all the time to prepare his Originating Processes and Supporting Affidavit. The learned Counsel to the Appellants further contended that the act of the Respondent was too overreaching, a smartness that was inequitable, unfair and unjust. Yusuf vs. Adegoke (2007) 11 NWLR (Part 1045) 332 and Kode vs. Yussuf (2001) 4 NWLR (Pt 703) 392 referred.

It was also his further submission that Exhibits, A, B, C, D, E, F & I at pages 30-39 of the Records being the basis of the decision reached by the Trial Court were inadmissible; thereby rendering the Judgment perverse.Olafemi vs. Ayo 2009 All FWLR (Pt. 452) III pg 1161, Paras. D-E; Atolagbe vs. Shorun 1985 NWLR (Part 2) Page 360, Adimora vs. Ajufo 1988 3 NWLR (Part 80) Page 1, Sogbamu vs. Odunaiya (2013) All FWLR (Pt. 700) 1247 at p.1307 and Edjekpo vs. Osia (2007) LPELR (1014) 1 at 46-47 were all relied upon to buttress the above submission.

Again, the learned Counsel for the Appellants contended that the decision of the Trial Court would not have been reached without the admission of the originally inadmissible evidence as they relied on the dictum of Lord Denning in Mcfoy vs. UAC Ltd. (1962) A.C. 152 at 160 quoted with approval by the Nigerian Supreme Court in Sken Consult vs. Godwin Sekondy Ukey (1981) 1 SC Page 6 at 8 referred. Therefore, on the above arguments, they finally urged this Court to set aside the Judgment and allow this Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 2 (TWO):
“WHETHER THE TRIAL COURT WAS RIGHT IN AWARDING THE CLAIMS OF THE RESPONDENT (THEN APPLICANT) AGAINST THE 1ST, 2ND AND 3RD APPELLANTS WHEN THE APPLICANT NEVER PROVED HIS CASE AGAINST THEM?”
On this Issue, the learned Counsel for the Appellants argued that, the fact of the arrest conducted by the Appellants as requested by the Prisons Personnel (4th Respondent then) was not unlawful, neither was he tortured or injured and that the 1st Appellant only assisted in the arrest of the Respondent due to his violent outburst of which after the arrest and handing the Respondent over to the Prisons Authority, he returned to his post. According to the learned Counsel for the Appellants, the Trial Court failed to attach weight to the Appellants’ Affidavit evidence particularly paragraphs 12, 14, 15, 16 of the Counter-Affidavit in opposing the Respondent’s claims without any specific contrary evidence by the Respondent and that a clear evaluation of the evidence led before a Trial Court is the only way to ascribed probative value to such evidence as there was no specific evidence or any evidence at all to conclude that the 1st Appellant/1st Respondent tortured or caused any injury to the Respondent.

It was their submission that the decision of the Trial Court occasioned a grave miscarriage of justice against the Appellants as it represented an unfair and partial appraisal of the facts. He therefore urged this Honourable Court to set aside the Judgment and allow this Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 3 (THREE):
“WHETHER IT WAS NOT A PERVERSE DECISION FOR THE LOWER COURT TO EXONERATE THE 2ND AND 3RD RESPONDENTS (2ND AND 3RD APPELLANTS NOW), WRONGLY HOLDING THE 1ST RESPONDENT TO BE A STAFF OF THE NIGERIA PRISON GBOKO AND STILL PUT A BLANKET LIABILITY ON ALL RESPONDENTS?”
On this Issue, the learned Counsel for the 1st-3rd Appellants contended that the Trial Court was bound to painstakingly consider and evaluate the totality of the evidence placed before her before arriving at its decision. He submitted that the 1st Appellant was definitely not a staff of the Nigerian Prisons, Gboko but a Military Personnel on a special assignment of security surveillance to complement the Prisons Security operatives and that it was perverse for the Trial Court to hold as she did at page 199 of the Records. In the view of the learned Counsel to the Appellants, the evaluation of evidence made by the trial Court should have excluded the 1st Appellant, from liability as he was not a Staff of the Prison.

According to the learned Counsel for the Appellants, the decision of the trial Court at page 206 of the Records confirm that the 2nd and 3rd Appellants being the principal of the 1st Respondent are not answerable to the Respondent’s Claims; but at page 44 of the CTC of the Judgment, the Trial Court ordered that the Appellants individually and severally pay the sum of Five Million Naira (N5,000,000.00) to the Respondent after clearly not mentioning the 2nd and 3rd Appellants as liable to the Respondents.

It was their contention that a wrong evaluation of the facts played out by the 1st Appellant in the incident at the Trial Court resulted in a perverse Judgment especially as there was no specific evidence against him in the matter. Therefore, they urged us to set aside the Judgment and allow this Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 4 (FOUR):
“WHETHER THE LOWER COURT WAS RIGHT TO DRAW A CONCLUSION OF TORTURE AND EYE INJURY OF THE APPLICANT THEN AGAINST THE 1ST RESPONDENT (1ST APPELLANT NOW) WITHOUT ANY EVIDENCE WHATSOEVER TO SAME?”
In canvassing this Issue, the learned Counsel for the Appellants contended that the 1st Appellant stated in his Affidavit evidence that he did not torture, injure or abuse the Respondent. The learned Counsel further contended that the 1st Appellant without any iota of variability asserted that he merely arrested the Applicant on invitation by the 4th Respondent then, handed him over to the Prison authorities and returned to his post and that the Respondent did not tender any evidence whatsoever to specifically indicate that the 1st Appellant tortured or abused him and that the trial Court was wrong to have held at page 217 of the Records that the 1st Appellant tortured and injured the Respondent.

It was the learned Counsel’s further submission on the above that the paragraphs of the Appellants Counter-Affidavit clearly state that the 1st Appellant did not torture or injure the Respondent particularly in Paragraphs 12, 14, 15, 16 at Pages 62-63 of the Records and that the authority cited by the learned Trial Judge in the case of MR. IGNATIUS ANYANWU & ORS. VS. MR. ALOYSIUS UZOWUAKA & ORS. (2009)
LPELR-SC 167/2005; was wrongly applied because the facts were not the same and that a Trial Court must arrive at its decision upon its impressions from the sworn evidence in Court. He maintained that a Judge is not entitled to roll in a view in place of evidence for this is to avoid substituting one thing for another LONDON GENERAL OMNIBUS CO. VS. LAVELL (1901) 1 CH. 135 AT 139 referred. Accordingly, it was his contention that the case of DZA VS. KOMLA (1956) 1 WALR 145 AT 146; would be instructive on this Issue because the conclusion made by the trial Court that the 1st Appellants tortured or injured the Respondent without any evidence was unfair and hasty.

On another score, the learned Counsel for the Appellants argued that the facts provided by the Appellants were straight forward without an iota of variability and indeed a far cry compared to that of the Respondent when put side by side with the averments made by all the parties involved in the matter especially those of the 4th and 5th Appellants which were in sharp contrast with that of the Respondent in the supporting Affidavit and that the Trial Court failed to evaluate the entire evidence in consideration of their credibility before reaching a final decision. Consequently, they urged this Court to set aside the decision of the lower Court and allow this Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE APPELLANTS ON ISSUE NUMBER 5 (FIVE):
“WHETHER THE JUDGMENT GIVEN BY THE TRIAL COURT IS NOT AGAINST THE WEIGHT OF EVIDENCE?”
On this Issue, the learned Counsel for the Appellants’ argued that all the arguments and submissions marshaled above show clearly that the Judgment given by the learned Trial Judge was against the weight of evidence and thus cannot stand as he referred us to the case of AKIBU VS. OPALEYE & ANOR. (1974) 11 SC 189, the Fourth Ground of Appeal which stated that the verdict was against the weight of evidence and ALHAJI ADEMOLA OLA KUNLE ELIAS VS. CHIEF TIMOTHY OMO-BARE (1982) 5 SC 25 PAGE 31 in support of the above submission. Accordingly, it was in the light of the above that the learned Counsel for the Appellants further submitted that there was no specific evidence as to justify the liability of the 1st, 2nd and 3rd Appellants as he finally urged us to allow this Appeal and set aside the Judgment of the trial Court with substantial cost in favour of the Appellants.

PRELIMINARY OBJECTION OF THE LEARNED COUNSEL FOR THE RESPONDENT ON GROUND ONE:
Arguing on the Preliminary Objection, the learned Counsel for the Respondent contended that the Grounds contained in the Notice of Appeal are not competent to the satisfaction of the provisions set out in Order 10 Rule 1 of the Court of Appeal Rules, 2016 and that all the Grounds filed and argued, with their alleged particulars, except the Omnibus Ground (Ground 7) are incompetent as they violate the provisions of Order 7, Rule 2(2) & (3) of the Court of Appeal Rules, 2016. The said Grounds with their respective particulars he further argued, are mere narratives and/or arguments, devoid of precision, incurably defective and therefore liable to be struck out with particular reference to Ground 2.

It was the argument of the learned Counsel for the Respondent that where misdirection in law is alleged and the particulars of the misdirection are not stated as in Ground 1 for example which complains that the Trial Court misdirected itself in law when it presumed the existence of an alleged torture and injury to the Applicant/Respondent’s right eye as flowing from the Applicant’s arrest and that this cannot be said to be a misdirection in law because none of the particulars under the Ground indicates that the Court committed a misdirection in law. None of the particulars identified how the decision, findings or holding of the learned Trial Judge was erroneous by way of misdirection in law. This trend according to him, permeates Grounds 2, 3, 4, 5 and 6 of the Grounds of Appeal. NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 718; GLOBE FISHING INDUSTRIES LTD VS. COKER (1990) 7 NWLR (PT.162) AT P. 300, OLORUNTOBA-OJU VS. ABDUL-RAHEEM (2009) 13 NWLR (PT.1157) 83 AT 121, AJAOKUTA STEEL CO. LTD. VS. BIOSAH & CO. (NIG.) LTD. (1997) 11 NWLR (PT.527) 145; HONIKA SAWMILL (NIG.) LTD. VS. HOFF (1994) 2 NWLR (PT.326) 252 AND OGBONNAYA VS. ADAPALM (1993) 5 NWLR (PT.292) 147 AND ADAH VS. ADAH (2001) 5 NWLR (PT.705) 1 AT 9 cited in so submitting.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON GROUND TWO OF THE PRELIMINARY OBJECTION:
On this second Ground, the learned Counsel for the Respondent argued that Issues 1, 2, 3, and 4 of the Issues distilled by the Appellants for determination having been distilled from incompetent Grounds as argued above, are themselves incompetent. He maintained that any Issue for determination which is based on incompetent or defective Grounds of Appeal goes to no Issue as such an Issue is liable to be struck out as being worthless. This is because in his view, it is the Grounds of Appeal that provide the legal basis for any attack on the Judgment of a Court and that it is Grounds of Appeal that give life, meaning and content to the Issues raised in the Appeal for determination. Consequently, it was submitted that the Issues distilled from incompetent Grounds become useless and therefore Issues 1, 2, 3 and 4 distilled from Grounds 1, 2, 3, 4, 5 and 6 are useless and should be struck out. THOR LTD. VS. F.C.M.B. LTD. (2002) 4 NWLR (PT.757) 427 AND NKPUMA VS. STATE (1995) 9 NWLR (PT.421) 505 AT P. 507 referred.

ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON GROUND TWO OF THE PRELIMINARY OBJECTION:
On this Ground, the learned Counsel for the Respondent contended that the Appellants’ Issue 1, appears to be distilled from no Ground of Appeal or put otherwise, it largely contains points or Issues of law not borne out of any Grounds of Appeal in the Appellants’ Notice of Appeal and that there was no Grounds of Appeal that says the Trial Court erred in law in allowing Applicant/Respondent to withdraw Exhibits upon which Issues had been joined. Thus it was further submitted, in allowing the substitution of inadmissible Exhibits with admissible Exhibits without an Application or accepting Annextures in the place of Exhibits amounted to an act of over-reaching. According to the learned Counsel, these were the Legal Points canvassed largely in various Sections of paragraphs 4.3 and 4.4 of the Appellants’ Brief. Accordingly, he took the view that the effect of the above in law is that the so-called Issue is unarguable and worthless. The authorities of WAEC VS. ADEYANJU (2008) 9 NWLR 270 AT 291, PARAS C-E AND WACHUKWU VS. OWUNWANNE (2011) 14 NWLR (PT.1269) 1 AT 30-31, PARAS. H-A were relied upon to round up his submission on the Preliminary Objection.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 1 (ONE):
“WHETHER ON THE TOTALITY OF ADMISSIBLE EVIDENCE ADDUCED IN THE TRIAL COURT, THAT COURT WAS RIGHT TO HOLD AS IT DID THAT APPELLANTS UNLAWFULLY ARRESTED AND/OR TORTURED APPLICANT/RESPONDENT LEADING TO HIS SUSTAINING INJURIES TO THE BODY INCLUDING THE INJURY TO HIS RIGHT EYE.”
In canvassing this first Issue, the learned Counsel for the Respondent contended that based on the totality of the admissible evidence placed before the Trial Court, the Trial Court was right to have held that the Appellants in concert with other Respondents infringed on the rights of the Respondent to dignity of human person and personal liberty by the arrest and torture which led to the various injuries including injury to his right eye and that the arrest was on a common ground and evidence exists that the Respondent was arrested.IKARE COMMUNITY BANK NIG. LTD. VS. ADEMUWAGUN (2005) ALL FWLR (PT.265) 1089 referred.

Reacting to the arguments of the learned Counsel to the Appellants’ Issue Number 2 that the arrest of the Respondent by the 1st Appellant was not unconstitutional or unlawful because he was merely invited to effect the arrest by the 4th Respondent at the Trial Court and that it was wrong for the Trial Court to find that the 1st Appellant was liable for the arrest, it was submitted that until the arrest of the Respondent is shown to be lawful, the 1st Appellant who carried out the arrest remains liable for the consequences of the arrest. In his view, it does not matter that he acted on an invitation for in essence what made the arrest of the Respondent unlawful lay on the fact that the persons who purportedly invited him to arrest the Respondent had no lawful justification to arrest or direct the arrest of the Respondent. For the above submission he referred us to the case of JOSHUA JONDO VS. TYOWUA TAUN (1993-1995) BNLR 73 AT 77.

It was the submission of the learned Counsel for the Respondent that the 1st Appellant was by no means required to execute unconstitutional and unlawful orders and even if he was merely invited to arrest the Respondent, he had a choice but rather chose to arrest and that this fact was made apparent by the community reading of paragraphs 5, 6, 7 and 13 of Appellants’ Joint Counter-Affidavit at the Trial Court. He further submitted that aside the purported unlawful invitation to arrest the Respondent, the 1st Appellant acted in accordance with the instruction given to him and that besides, he was/is security personnel who having watched events decided to act. This according to learned Counsel is even so as he was still answerable to the 2nd and 3rd Appellants who had merely “deployed” him to the Nigerian Prisons, Gboko, Benue State to work in line with his training. Therefore, the learned Counsel further argued his compliance with the alleged invitation of the Prison Staff makes him and his employers liable and that this ousts the Appellants’ Argument in their Issue No: 2 that the arrest of Respondent by the 1st Appellant is not unlawful for the act of the 1st Appellant also rendered the 2nd and 3rd Appellants vicariously liable.

Again, it was his argument that the learned Counsel for the Respondent had in paragraphs 6, 7 and 23 of his Affidavit in support deposed that he went to a Business/Computer Centre opposite Federal Prisons, Gboko and parked his Car by the roadside-thus justifying his presence at the place the incident occurred – but rather than deny that there was no business Centre at that place or that the car was not parked by the roadside, the Appellants kept silent on the existence of a Computer Centre and went on to evasively say that the said Car was parked somewhere within the radius of their security surveillance. Accordingly, it was submitted that it was correct for the Trial Court to discountenance paragraph 13 of the Appellants’ Counter-Affidavit amongst others as he did at page 216 of the Records lines 16-17 and pages 216, 222, 223 and 224 of the Records.

It was the further submission of the learned Counsel to the Respondent that the case of Appellants on the question of the lawfulness of the arrest was well considered and rejected by the trial Court and that the evidence that informed the decision of the Trial Court or which supported the holding that the arrest of the Respondent by the 1st Appellant whether on invitation or otherwise was unlawful was that the place where the Applicant/Respondent went to, opposite the Federal Prisons, Gboko where the incident took place has inter alia, commercial computer/business centers, Shops for sale of drinks and other products and so members of the public also had access to the area besides Cars owned by other customers were parked by the roadside, he also submitted.

The learned Counsel for the Respondent upon insisting on the question of who tortured the Respondent with emphasis on whether the 1st Appellant was involved submitted that it was the 1st Appellant and the other Respondents at the Trial Court who jointly tortured the Respondent and that there is credible evidence to this effect contrary to Appellants’ Argument under Issues 2, 4 and 5 that there was no evidence.

On another score, the learned Counsel to the Respondent denied the charge of being aggressive as appeared in paragraphs 13 and 23 of his Further-Affidavits to the Counter-Affidavits of the Appellants at page 81 of the Records as he submitted that the 1st Appellant also carried out other acts of torture on the Respondent. The Trial Court in pointing out this fact, stated that in reliance on Section 167 of the Evidence Act, 2011 and the authorities cited at page 217 of the Records, it was most probable that the 1st Appellant having concluded his assessment on the situation that the Respondent was aggressive, applied force to arrest and carry the Respondent into the Prison yard where he was finally tortured and injured. Exhibits “G” and “H” which were admitted without objection according to him point irresistibly to the torture of the Respondent detailing the nature and degree of injuries suffered and that the Trial Court and this Court are entitled to rely on the said Exhibits as he referred us to the case of NBC VS. UBANI (2013) 12 SCNJ (PT.2) 527 at page 565. Exhibit “G” he noted, is the Medical Report issued by Myom Hospital, Gboko and can be found at page 37 of the Records.

It was on the above contention that the learned Counsel for the Respondent submitted that the insistence by the Appellants under Issues 2, 4 and 5 of their Brief of Argument that no evidence exists or links them with the torture of the Respondent was premised on the wrong assumption that as long as they denied the fact of the torture in paragraphs 12, 14, 15 and 16 of their Counter-Affidavit, the Trial Court should have upheld their denial which ignores the fact that beside their denials, the Trial Court was to act on the totality of the evidence placed before her. Therefore, it was further submitted, the Trial Court was right in disregarding the Appellants’ bare faced assertions which did not even agree with the general flow of evidence in the matter as he referred us again to page 217 of the Records.

The learned Counsel for the Respondent submitted that in tort, the 1st Appellant is a Joint tort-feasor and in Criminal Law, he is co-conspirator or an accessory before the fact of the torture – IKEMSON VS. STATE (1989) 6 SCN 54 (PT.1) referred. According to the learned Counsel, the holding of the Court at pages 66-68 implies that the 1st Appellant unlawfully/unconstitutionally arrested the Respondent and tortured him in the process and then allegedly handed him over to others who continued the torture as his liability is not in any way less.

On the arguments made about the purported wrongful admission of Exhibits under the Appellants’ Issue No:1 and probably premised on Grounds 2 and 4 of the Grounds of Appeal, the learned Counsel for the Respondent contended that the substance of the complaint was that the Trial Court admitted Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “I” which were inadmissible and proceeded to rely on them mainly to find favour on the Applicant/Respondent as he submitted that assuming the said Exhibits were inadmissible and the Trial Court did not admit them; the decision of the Trial Court would not have been different and that the case of the Applicant/Respondent was provable without the said allegedly inadmissible Exhibits, for the law is well positioned that a wrongful admission or rejection of evidence shall not by itself be a ground for reversal of a decision appealed against save where it was shown that such wrongful admission or rejection had led to miscarriage of justice. Section 251 of the Evidence Act, 2011, as amended and the case of GBAFE VS. GBAFE (1996) 6 SCNJ 167 were cited in support of the above submission.

Relying on the authorities of the STATE VS. OGBUBUNJO & ANOR. (2001) 5 NSCQR PAGE 27 AND UNITED BANK FOR AFRICA LTD. & ANOR. V. MRS NGOZI ACHORU (1990) 6 NWLR (PT.156) 256 AT PAGE 270; 1990)10 SCNJ. 17 (A), 26; the learned Counsel for the Respondent submitted that the Exhibits allegedly admitted wrongly did not prove the facts that the Respondent was arrested and tortured by the Appellants or any person for that matter but were the acts that infringed the rights of the Respondent. In the alternative, he contended that without those Exhibits, the decision of the Trial Court would still be sustainable and that the Exhibits relating to the academic Record of the Respondent. Exhibits “A” and “B”, merely sought to prove that the Respondent was/is a responsible citizen; – a degree holder in Political Science and then a Law Student.

Consequently, he finally submitted on the above Issue that even an irresponsible or uneducated citizen is entitled to his rights which can only be stripped in accordance with the provisions of the Constitution or Law.

ARGUMENT OF LEARNED COUNSEL TO THE RESPONDENT ON ISSUE NUMBER 2 (TWO):
“WHETHER IT WAS NOT A PERVERSE DECISION FOR THE LOWER COURT TO EXONERATE THE 2ND AND 3RD RESPONDENTS (2ND AND 3RD APPELLANTS NOW), WRONGLY HOLDING THE 1ST RESPONDENT TO BE A STAFF OF THE NIGERIA PRISON, GBOKO AND STILL PUT A BLANKET LIABILITY ON ALL RESPONDENTS. THIS ISSUE SHALL COVER GROUNDS 3 AND 5 OF THE GROUNDS OF APPEAL.”
On this second Issue, the learned Counsel for the Respondent contended that the holding of the Trial Court that the 1st Appellant unlawfully arrested and tortured the Respondent was correct as argued under Issue 1 above. Howbeit, he asserted that the Trial Court erred in law when it held in one breadth that the 1st Appellant was a Staff of the Federal Prisons, Gboko as can be seen at page 199 of the Records and in another breadth, held that he was a Staff of the 1st Appellant-himself – or any other person for that matter (page 206 of the Records referred) and yet went on to find the 2nd and 3rd Appellants liable for infringing on the Respondent’s rights.

It was on the above holding that he filed the Respondent’s Notice of Intention to contend that the decision of the Trial Court on that point be varied so that the employers of the 1st Appellant, rather than a third party, will be vicariously liable for the 1st Appellant’s infraction of the rights of Respondent and that for the fact that he was apparently held to be a Staff of Nigerian Prisons, Gboko, Benue State does not derogate him from his liability.

Accordingly, he submitted that the circumstances of this matter justify reliance on Order 9 Rule 1 of the Court of Appeal Rules as he referred us to the authorities of LAGOS CITY COUNCIL VS. EMMANUEL AYODEYI AJAYI (1970} ANLR 293; F.R.A. WILLIAMS VS. D.T.N (1990) 1 T.W.L.R 129 AND ADEOSUN SHITTU VS. BABALOLA LAWANI & ANOR. (1972] ANLR 557.

On another score, the learned Counsel for the Respondent argued that the Appellants explicitly admitted and/or asserted in their depositions that the 1st Appellant is an agent or employee of the 2nd and 3rd Appellants. Conversely, the latter were the principals or employers of the 1st Appellant. Therefore, he urged this Court to take a cursory look at paragraphs 1, 2, 3, 8 and 20 of 1st, 2nd and 3rd Appellants’ Counter-Affidavit found at pages 61, 62 and 63 of the Records, paragraphs 5, 8, 14, 19, 21 and 22 of the1st – 3rd Appellants’ Counter-Affidavit found at pages 61 – 63 of the Records and their Joint Written Address accompanying the Counter-Affidavit at paragraphs 2.2, 4.2, 4.11 and 4.13 found at pages 66, 67, 69 and 70 of the Records.

It was his further argument that the Appellants will not be prejudiced or suffer miscarriage of justice by the variation and that on their own admission and assertion, the 1st Appellant was their Staff and not the Staff of Federal Prison, Gboko as they defended the action at the Trial Court on that basis. In the light of the above, he therefore submitted that the failure to uphold this fact was the fulcrum of their argument on Issue 3 in paragraph 4.8 of their Brief and that if he may employ the words of Appellants in paragraph 4.8 under their Issue 3 in their Brief of Argument at page 10, the resultant effect would be that the 2nd and 3rd Appellants were vicariously liable for the unlawful acts of the 1st Appellant. On that premise, he maintained that all the Appellants are liable to the Respondent as was held by the Trial Court and this gave room for the invocation of Order 9 of the Rules of this Court to effectively operate.

It was his submission that the portions of the Judgment to be affected by the variations can be found at page 199 lines 3-6 and 206, lines 11-16 of the Records. The variation to be effected according to him, is that the 1st Appellant was the Staff of the 2nd and 3rd Respondents while the 4th, 5th and 6th Respondents were the Staff of the Nigerian Prisons Service, Gboko, Benue State and that all of them unlawfully arrested and tortured the Respondent. Accordingly, he contended that instead of dismissing his case at the Trial Court because of the error considered under this Issue; this Court should vary the Judgment of the Trial Court by describing the 1st Appellant as the Staff of the 2nd and 3rd Appellants.

Concluding his argument on Issue 2, he submitted that even though the Trial Court wrongly held that the 1st Appellant was a Staff of the Nigerian Prisons Service, Gboko, Benue State, the Respondent has filed a Notice of Contention to have the decision of the Trial Court on that point varied. Therefore, he submitted, the variation would bring the Judgment of the Trial Court in line with the evidence on Records. In the light of the foregoing, he urged us to hold that the entire decision of the Trial Court is thus sustainable and dismiss the Appeal.

APPELLANTS’ REPLY TO THE RESPONDENT’S PRELIMINARY OBJECTION
In canvassing their response on the Preliminary Objection, the learned Counsel for the Appellants contended that their Grounds of Appeal are not narratives and/or argumentative and that their Appeal set forth the Grounds concisely and under distinct heads namely; Ground One: Misdirection, Ground Two: Misdirection, Ground Three: Perverse Judgment, Ground Four: Misdirection, Ground Five: Error in Law, Ground Six: Error in Law, Ground Seven: Omnibus. He posited that the Grounds merely stated the exact words of the Trial Court Judge without more, before marshalling out the particulars of the Grounds. This was in conformity with the provision of Order 7, Rule 2(3) of the Court of Appeal Rules, 2016, and therefore competent. OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT.1482) R. 42, ADEROUNMU VS. OLOWU (2000) 4 NWLR (PT.652) 253, HAMBE VS. HUEZE (2001) 4 NWLR (PT.703) 385,ONAFOWOKAN VS. WEMA BANK PLC (2011) 12 NWLR (PT.1260) 24; BEST (NIG.) LTD. VS. BLACKWOOD HODGE (NIG.) LTD. (2011) 5 NWLR (PT.1239) 95, PAGE 199, PARAGRAPHS F- H were all relied upon in so submitting.

It was his argument that Grounds of Appeal may stand on their own once they represent an Appellants’ complaint against the decision they are not satisfied with and in respect of which grouse they seeks the Appellate Court to intervene. He submitted that lack of or defective particulars in a Ground of the Appeal would not necessarily render the Ground incompetent (OMOJU VS. FRN (2008) 7 NWLR (PT.1085) 38 P. 14 PARAS. F-G referred) adding that substantial Justice, where possible, must not be allowed to be defeated by irregularities or technicalities that could be cured by the exercise of a Court’s discretion – EKWERE VS. THE STATE (1981) 9 SC 3 referred.

In the light of the above, the learned Counsel for the Appellants further relied on the authority of PRINCE ADEBAYO SOSANYA VS. ENGINEER ADEBAYO IDOWU ONADEKO & ORS (2005) LPELR-SC. 294/2000 where the Appeal was considered notwithstanding the prolixity of the Grounds of Appeal, to buttress his contention.

It was their further argument that the Respondent knows the exact complaint against the Judgment; particularly in paragraphs 6.9 to 6.22 which dealt with Ground two of the Appellants’ Notice of Appeal. Still on the first Ground of the Preliminary Objection, it was noted that misdirection occurs when a Judge misconceives the Issues whether of facts or of law or summarizes the evidence inadequately or incorrectly; as was stated in NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 718; (1987)11-12 SCNJ 72 AT 99-100 in the dictum of NNAEMEKA-AGU, JSC. This was also affirmed in CHIDIAK VS. LAGUDA (1964) NMLR 123 AT 125. In the instant case, he insisted that the particulars of misdirection were clearly stated in their Ground One of the Notice of Appeal. Consequently, to avoid unnecessary repetitions, he adopted his submission in paragraphs 1.1 and 1.2 above for Ground two of the Respondent’s Preliminary Objection and urged this Court to dismiss these Grounds of Objections as lacking in merit.

Accordingly, it was his contention that the third Ground of the Preliminary Objection clearly supports Ground Two of their Notice of Appeal which was under the distinct head of Misdirection as was stated clearly in paragraph 4.0, Issue 1 at page 5 of their Brief of Argument that this Issue was distilled from Ground Two in their Notice of Appeal. He maintained that the learned Counsel to the Respondent’s argument that this Issue was distilled from no Ground of Appeal was unfounded as they urged this Court to dismiss this Ground of Objection and accordingly all the Grounds of Preliminary Objection and hear this Appeal on its merit in the interest of substantive justice.

APPELLANTS’ REPLY BRIEF:
In the Reply on points of law, the learned Counsel for the Appellants contended that the 1st Issue established in paragraphs 5 and 6 of the Appellants’ Counter-Affidavit at page 62 of the records was the fact that the 1st Appellant was stationed at the Federal Prisons, Gboko, Benue State to man security surveillance within a given radius and especially to aid the Prisons Security protocol. Page 13 of the Records was referred to in submitting that in reaction to the Respondent’s Counsel’s Argument that the Respondent’s arrest was unlawful/unconstitutional; they unequivocally state that the law allows security personnel stationed at Prison complexes, acting under reasonable suspicion to intercept or prevent an act by any person or group of persons, which may compromise the security of the prisoners held or the overall security of the prison complex as he referred us to Section 142 of the Prisons Act and pages 12 and 103 of the Records..

The learned Counsel for the Appellants also referred this Court to Section 81 of the Prisons Act, Section 39 of the Police Act and Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria as Amended. According to the learned Counsel for the Appellants, these remain the simple reason why the Respondent was arrested and handed over to the Prisons Authority for further interrogations. He therefore submitted in the light of the above that the 1st Appellant had indeed intervened appropriately and acted according to the law and having engaged in a lawful duty, it is therefore established that there was no wrongdoing or omission which might have led to the alleged contravention of the Respondent’s rights.

Finally, in the light of the above submissions they urged this Honorable Court to allow this Appeal, set aside the Judgment of the Trial Court and enter Judgment in favuor of the Appellants.

DETERMINATION OF THE RESPONDENT’S PRELIMINARY OBJECTION:
I have carefully considered the submissions of the respective learned Counsel on the Preliminary Objection raised by the learned Counsel to the Respondent against the competence of the entire Grounds except the Omnibus Ground of the Notice of Appeal as they allegedly violate the provisions of Order 7, Rule 2 (2) and (3) of the Court of Appeal Rules, 2016. For the avoidance of doubt, the prescription Rule 2 (2) and (3) of Order 7 of the Court of Appeal Rules, 2016 would be set out hereunder thus:
“(2). Where a Ground of Appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The Notice of Appeal shall set forth concisely and under distinct heads the Ground upon which the Appellant intends to rely at the hearing of the Appeal without any argument or narrative and shall be numbered concisely.”
The law is trite that a Ground of Appeal is a Statement by which an Appellant complains of the error or mistake committed in the process of ascertaining the law or the application of the law to disputed or proved facts or that the Court had misdirected itself or was in error in the course of appraising the evidence before it, thereby arriving at a wrong or perverse decision. In the words of the learned Law Lord of the Apex Court, NIKI-TOBI, JSC at pages 65-66, paragraphs E-A in the case of DAGACI OF DERE & ORS V. DAGACI OF EBWA & ORS (2006) LPELR-911 (SC):

“GROUND TWO (2):
The Trial Court misdirected itself when it held thus at page 31 of Judgment: “I examined the depositions on Further Affidavit by the Applicant in response to the 1st, 2nd, 3rd, and 7th Respondents and find all the paragraphs 8, 9, 10 and 15 thereto relevant. Affidavit depositions which regularized the Applicant’s admission letter Exhibit “2”, Certificate of Compliance with electronic evidence Exhibit “3” and regularization of Exhibits “C”, “D” and “E” now as Exhibit “4”.” At pages 33/34 “I closely scrutinize the Affidavit in Support as it affects the 1st to 3rd and to the 7th Respondents, the Counter-Affidavits and the deposition in the Further Affidavit by the Applicant and find out that, upon the regularization of the Applicant’s Documents that is Exhibits “1”, “2”, “3” and “4”…
GROUND 3:
The Trial Court upheld a perverse Judgment at page 17 of CTC of Judgment: “In the light of the Statement of Claim by the Applicant, and the depositions from the Affidavit in Support, it is apparent that the 1st, 4th, 5th, and 6th Respondents are staff of the Nigeria Prison, Gboko and are allegedly involved in beating and causing injury on the right eye of the Applicant, I so hold.” At page 24 of the CTC of Judgment: “I also examined Exhibits “D” which depicts pictures of the Applicant showing stains of blood into his right eye, thus it is my considered view and I so hold that the combination of the Affidavit evidence and the Exhibit (supra) constitute a sufficient material evidence to enforce his fundamental rights against the 1st, 4th, 5th, and 6th Respondents and their principals that is the 1st, 7th, 8th and 9th Respondents to answer…” At page 44 of the CTC of Judgment: “An Order for the Respondents individually and severally pay to the Applicant the sum of N5,000,000.00 (Five Million Naira) only as general damages for unlawful arrest and torture.
GROUND 4:
The Lower Court misdirected itself when it held thus at page 34 of CTC of Judgment: 1st Paragraph: “Paragraphs 9, 10, 17, 18 of the 1st to 3rd Respondents’ Counter-Affidavit which seek to justify the arrest and torture of the Applicant are hereby discountenance. 2nd Paragraph: “Paragraphs 7 and 13 of the 1st to 3rd Respondents Counter-Affidavit which seek to justify arrest and torture of the Applicant are hereby discountenanced.”
GROUND 5:
The Trial Court erred in law when it held at page 24 of CTC of Judgment: “…and I so hold that, the combination of the Affidavit evidence and the Exhibits (supra) constitutes a sufficient material evidence to enforce his fundamental rights against the 1st, 4th, 5th, and 6th Respondents and their principals that is 1st, 7th, 8th and 9th Respondents to answer…” The Trial Court in the same Judgment at page 44 gave “An Order for the Respondents individually and severally pays the Applicant the sum of N5,000,000.00 (Five Million Naira) only as general damages for unlawful arrest and torture.”
GROUND 6:
The Trial Court erred in law when it held at page 35 CTC of Judgment: “It is my considered view and I so hold that hence the 1st Respondent participated in the arrest of the Applicant, already viewed the Applicant to have a violent posture against the 4th Respondent, and hence the 1st Respondent took the Applicant into the Gboko Prison premises, the 1st Respondent cannot be heard of saying he is not involved in the manhandling of the Applicant without contrary admissible evidence, my irresistible conclusion is that, the 1st Respondent fully participated in the arrest, torture and injury to the Applicant’s right eye. I so hold.”

The above Grounds of the Appellants’ Notice of Appeal merely quote the ratio of the learned Trial Judge that in the view of the Appellants amounted to errors of law or misdirection committed by the learned Trial Judge. Howbeit, it does not still deny the Respondent of the ability to comprehend rightly the nature of the complaint.
There is also no doubt that none of those Grounds as reproduced above states either the particulars of error of law or misdirection committed by the Trial Court nor the effects of such errors of law or misdirection on the Appellants. In other words, in the era of strict adherence to technicalities all the Grounds of Appeal enumerated ought to be struck out for being incompetent.
Be that as it may, and even though the essence of the Rules of Court cited above is to ensure that the Respondent and indeed the Appellate Court are properly seised of the gravamen/grouse of the Appellant’s complaint in order for the former to proffer a response to the Appellant’s agitations and for the latter (the Appellate Court) to determine comprehensively and judiciously, the issues arising from such Grounds of Appeal, the era of technicalities or mechanical justice is long gone and the emphasis on substantive justice is now the stance of all Courts of Records beginning from the Apex Court.
For the avoidance of doubt, this position of the law was emphasized by no other personage than the erudite Legal Guru of the Apex Court, C.C. Nweze, JSC; in the case of Senator Iyiola Omisore & Anor. vs. Ogbeni Rauf Adesoji Aregbesola & Ors. (2015) LPELR-24803 (SC) thus:
“The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that, it is not every failure to attend to Ground of Appeal with the fastidious details prescribed by the rules of this Court that would render such a Ground incompetent. This is, particularly so where sufficient particulars can be gleaned from the Grounds of Appeal and the adversary and the Court are left in no doubt as to the particulars on which the Grounds are founded, Ukpong & Anor. V. Commissioner for Finance and Economic Development and Anor. (2006) LPELR-3349, citing Hambe v. Hueze 21 (2001) 4 NWLR (PT. 703) 372; (2001) 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant Ground of Appeal in the interest of justice, Dakolo and Ors. V. Rewane Dakolo & ors(2011) LPELR-915. Hence bad or defective particulars in a Ground of Appeal would not necessarily render the Ground itself incompetent, Prince Dr. B. A Onafowokan v. Wema Bank (2011) 45 NSCQR 1; Best (Nig) Ltd. V. Black Wood Hodge (2011) 45 NSCQR; Abe v. Unilorin (2013) LPELR. Put differently, since the essence of particulars is to project the reason for the Ground complained of, the inelegance of the said particulars would not invalidate the Grounds from which they flow, NNB Plc. V. Imonikhe (2002) 5 NWLR (Pt. 760) 241. 310…this Court has no justification for departing from this wholesome contemporary attitude.”
In consonance with the above dictum of His Lordship that Rules of Court may we also posit and emphasize, should always at best be interpreted liberally and devoid of rigidity as the Courts are urged to relax their stringent rules so as to create room for fairness and justice predicated on merit. Accordingly, since essentially, the purpose of the Rules of Court relating to couching of Grounds of Appeal is to give sufficient notice and information to the other party on the precise nature of the complaint of the Appellant, and of the Issues that are likely to appear on the Appeal; once an Appeal satisfies this purpose, it should not be struck out even though it fails to conform with a particular form prescribed in the Rules as in the instant case.
The Supreme Court per MUHAMMAD JSC in the case of ABE V. UNIVERSITY OF ILORIN (2013) LPELR-2064 (SC) opined that:
“The Ground of Appeal may stand on their own once they represent the Appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the Appellate Court’s intervention. Lack or defective Ground of Appeal would not necessarily render the Ground incompetent. See also the authorities of PRINCE (DR) B.B. ONAFOWOKAN & ORS V. WEMA BANK PLC & 2 ORS NSCQR VOL. 45 (2011) 181 SC, BEST (NIG) LTD VS. B.W HODGE (NIG) LTD & 2 ORS NSCQR VOL. 45 (2011) 849. What is important or monumental is that the Ground of Appeal must be framed in a way that both the Respondent and the Court can easily appreciate the nature and purpose of the complaint being made against the judgment.”
The fact that the era of legalism and barren technicalities have gone for good in Nigeria and that the Courts have moved away from the regime of technical justice to the domain of substantial justice; was also stressed by the Apex Court per OGUNDARE, JSC at page 32, paragraph A-G in the case of CHIEF CHUBA EGOLUM V. GENERAL OLUSEGUN OBASANJO & ORS (1999) LPELR-1046 (SC) where the erudite law lord succinctly intoned that:
“The emphasis now is more on doing substantial justice rather than technicalities which the Cross-Appellant seems to be all about. See MATTEW OBAKPOLO V. THE STATE (1991) 1 NWLR 133 at 129 where this Court per AKPATA, JSC observed “that there was procedural irregularity which is not in doubt, it is however an irregularity which has not led to a miscarriage of justice…paramount duty of a Court to do justice and not cling to technicalities that will defeat the end of justice…”
In that same case, it was observed that the weight of judicial authorities have shifted from undue reliance on technicalities to doing substantial justice even handedly to the parties before a Court. The current judicial attitude to technicalities was best expressed in NISHIZAWA LTD VS. STRICHAND JETHWANI (1984) 12 SC. 234 at 285-286 where OPUTA, JSC (as he then was) held that:
“The duty to do justice is fundamental and substantial, the procedure to attain that desired goal is functional and subsidiary. The question will arise if somewhere along the line the rules of procedure conflict with the essential duty of the Court to do justice by deciding the rights of the parties after hearing both sides, what happens? When this happens which one will prevail? I agree that Courts do not administer justice in abstract but justice according to the law including Rules of Court. Rules of Court are meant to be obeyed and one cannot therefore shuts one’s eyes to any laxity or failure to comply with those rules…this Court has on several occasion insisted that rules of procedure should be obeyed. But all the same, rules should be helpful handmaids and not tyrannical and uncompromising masters. The general view with which I am in complete agreement is that it is undesirable to give effect to rules which enable one party to score a technical victory at the expense of a hearing on the merit. This statement confirms the prevailing views of the Court that the era of technicalities is over and that the Courts nowadays insist on substantial justice.”
Predicated on the above cited authorities, I am therefore in consonance with the submissions of the learned Counsel for the Appellants that this Court would no longer refuse the hearing of Appeals as in this case on the Respondent’s Grounds of Objection that the Grounds of Appeal are allegedly narratives or argumentative provided that sufficient materials abound from the Grounds for the determination of such Appeals. The law is settled that where Grounds of Appeal together with their particulars have sufficiently disclosed the nature of the complaint of the Appellant, such Grounds of Appeal will be sustained notwithstanding that they are narrative or argumentative or that the particulars do not support the Grounds. See NWOSU V. PDP & ORS (2018) LPELR- 44386 (SC). Consequently, once a Ground of Appeal has sufficiently disclosed the Appellant’s complaint against the decision he is displeased with, the lack of/or defective particulars will not necessarily render the Ground incompetent.

On the third Ground of the Preliminary Objection, it is trite that an Issue or Issues for determination must be related to the Ground or Grounds of Appeal so raised by the Appellant. It must of necessity be limited by or circumscribed within the scope of the Ground of Appeal and cannot be raised outside their contemplation otherwise they become irrelevant and liable to be struck out along with the argument made there-from. In the instant case, it is the contention of the learned Counsel for the Respondent that the Appellants’ Issue 1 appears to be distilled from no Ground of Appeal, but upon careful perusal of the entire Grounds, I noticed that the Appellants’ Issue 1 was distilled from Ground 2 as the documents referred to by the Appellants were documents that were tendered by the Respondent without certification. Again, it was rightly stated in paragraph 4.0 at page 5 of the Appellants’ Brief that the said Issue 1 was distilled from Ground 2 of the Notice of Appeal.

Upon insistence on the reign of substantial justice, I am of the opinion that all the Grounds of Appeal and their respective particulars together with the Issues complained of by the learned Counsel for the Respondent though inelegantly couched, are competent. Therefore, non-compliance with the fastidious details prescribed by the Rules of this Court would not render the issues so distilled from the Grounds of Appeal incompetent. This is particularly so where sufficient material grains of the error or misdirection complained of can be gleaned from the Ground as in the instant case. Accordingly, this Preliminary Objection is unmeritorious and is hereby dismissed.

In the event that I am wrong in the determination of the Preliminary Objection, this Appeal shall further be determined on the merit for the interest of justice.

RESOLUTION OF THE SUBSTANTIVE ISSUES
Having resolved the Preliminary Objection which questioned the competence of the Grounds of Appeal and the Issues distilled therefrom, we shall proceed to determine the Appeal on the merit.

However, since the Appellants’ grouse in the Appeal is predicated on the evaluation of evidence and the Grounds are equally intertwined, this Court shall adopt and consolidate the Respondent’s two Issues into One Issue and subsume there-under the Appellants’ (5) five Issues since they all share the same gravamen as to whether the evidence placed before the trial Court were admissible to harness the Court’s holding that the Appellants unlawfully arrested and tortured the Respondent.

RESOLUTION OF SOLE ISSUE AS REFORMULATED:
“WHETHER ON THE TOTALITY OF THE ADMISSIBLE EVIDENCE ADDUCED BEFORE THE TRIAL COURT, THE TRIAL COURT WAS RIGHT TO HAVE HELD AS HE DID THAT THE APPELLANTS UNLAWFULLY ARRESTED AND/ OR TORTURED THE RESPONDENT WHICH LED TO THE INJURIES FOUND ON HIS EYE AND BODY IN PARTICULAR?
The crux of the Appellants’ Issue one is that the Respondent tendered in evidence originals of public documents which are in law inadmissible. The law is settled and there are several decisions of the Apex Court and this Court to the effect that the original of a public document is not only admissible in evidence but also the best admissible evidence of the document, see the case of ONOBRUCHERE VS. ESEGINE (1986) 1 NSCC 343, 356, ITEOGU VS. LPDC (2009) 17 NWLR (PT. 1171) 614 SC.
The Supreme Court in the case of PDP VS. INEC (2014) 17 NWLR (PT.1437) AT PAGE 563 PARA B-C in no uncertain terms, unequivocally reaffirmed that the only categories of public documents that are admissible are either the original documents themselves or, in the absence of such originals, Certified Copies and no other. In the instant case, the Respondent had earlier tendered original documents which were admitted in evidence as Exhibits “A”, “B”, “C”, and “D” as rightly captured by the Learned Trial Judge at pages 215-216 lines 19-25 of the Records/Judgment that:
“That I closely scrutinized the Affidavit in support as it affects the 1st to 3rd and 7th Respondents, the Counter-Affidavits and the depositions in the Further Affidavit by the Applicant and found out that, upon the regularization of the Applicant’s documents that is Exhibits “1”, “2”, “3” and “4” which he took for photocopy at the computer center on the 26th of May, 2016 opposite the Gboko Prison, the Applicant’s mission in my view is legitimate and does not constitute security risk to the Gboko Prison, I so hold.”

There is no doubt that the Respondent ought to have laid proper foundation before tendering the Certified True Copies of those documents as prescribed by the Evidence Act but considering the nature of the Suit which could only be argued and contested by Affidavit evidence of which the Respondent had a traditional duty to file a Counter-Affidavit; it was the Counter-Affidavit that resulted to the Respondent’s Further Affidavit annexing those documents otherwise referred to as “Certified True Copies.” It is important to note that the Respondent made a formal Application for the regularization of his processes which can be seen at page 73 of the Records.

The question of withdrawing the original documents (Exhibits) in my opinion is of no moment as the documents tendered as originals were the same documents that were attached to the Further-Affidavit. The Trial Court was therefore right to have attached probative value to those Exhibits because they were relevant to the facts in Issue as was established in the case of JUSTUS NWABUOKU & ORS V. FRANCIS ONWORDI & ORS (2006) LPELR-2082 (SC) where TOBI, JSC at page 20 paragraph C-E opined that:
“Admissibility, one of the cornerstones of our law of Evidence, is based on relevancy. A fact in Issue is admitted if it is relevant to the matter before the Court. In that respect, it is correct to say that relevancy is a precursor to admissibility in our law of Evidence. Flowing from the above, the negative statement that what is not relevant is not admissible is correct.”

Accordingly, Order IX of the Fundamental Rights Enforcement Procedure Rules, 2009 set out the effect of non-compliance with regards to anything done or undone in the course of trial as follows:
“Where at any stage in the course of or in connection with any proceedings, there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings…”

Consequently, it is my considered view that with the combined effect of Order IX of the Fundamental Rights Enforcement Procedure Rules, 2009 and the case of ONOBRUCHERE VS. ESEGINE (supra); the lower Court was right to have attached probative value to those Exhibits.

On whether the decision of the Trial Court was not perverse as to draw a conclusion that the eye injury of the Respondent was caused by the 1st Appellant; it is glaring that the Trial Court was wrong to have held in one breadth that the 1st Appellant was a Staff of the Federal Prisons, Gboko and in another breadth that he was a Staff of the Appellant-himself or other persons for that matter.

The law is settled that a Respondent who intends to contend with the decision of a Court will be required to give Notice by way of a Respondent’s Notice to the Appellant stating precisely the part of the decision that he is dissatisfied with or perhaps the full decision. This is a Cross-Appeal because the Respondent can only file a Notice of Intention to contend on the currency of a substantive Appeal filed by the Appellant. See ETOWA ENANG V. FIDELIS IKOR ADU (1981) 11-12 SC 25; OBASANJO V. BUHARI (2003) 17 NWLR (PT. 850) 541 and EMIRATE AIRLINE V. AFORKA (2015) 9 NWLR (PT. 1463) 80. The implication of this is that the Appellants and the Respondent are aggrieved by the judgment and are both appealing against it, albeit for different reasons.
The Apex Court per COKER, JSC at pages 4-5, paragraphs B-A, in the case of LAGOS CITY COUNCIL V. EMMANUEL AYODEJI AJAYI (1970) LPELR-1742 (SC) opined that:
“Order 7 Rule 13 of the Supreme Court Rules reads as follows: “13 (1) it shall be necessary for the Respondent to give Notice by way of Cross-Appeal; but if a Respondent intends upon the hearing of an Appeal to contend that the decision of the Court below should be varied, or that it should be affirmed on Grounds other than those relied on by the Court, he shall within one month after service upon him of the Notice of Appeal cause written Notice of such intention to be given to every party who may be affected by such contention, whether or not such party has filed an address for service. In such Notice, the Respondent shall clearly state the Grounds on which he intends to rely and within the same period he shall file with the Registrar of the Court below six copies of such Notice of which one shall be included in the record, and the other five copies provided for the use of the judges.”
The Supreme Court in construing the provisions of Order 8 Rule 3 of the Supreme Court Rules which is in pari-materia with Order 9 Rule 1 of the Court of Appeal Rules, set out the conditions which the Respondent must satisfy in such circumstance inter alia:
(i) Firstly, the need for the Notice must have arisen pursuant to a subsisting Appeal.
In the case hereto, the need is borne out of Appellants’ Appeal specifically Grounds 3 and 5 of the Grounds of Appeal argued under Appellants’ Issue 3.
(ii) Secondly, the Respondent must be seeking to retain the Judgment while arguing for the variation.
The Respondent herein seeks to retain the Judgment that the 1st – 3rd Appellants are liable for the arrest and torture of the Respondent but seeks that, the holding of the 1st Appellant as a Staff of Nigerian Prison Service, Gboko, Benue State or of himself be varied with the true position of him being a staff of the 2nd and 3rd Appellants as they are not natural persons for it is only the acts of their agent or employee that can be attributed to them. Meanwhile, the only person who could be their agent in this Appeal by their various depositions as contained in their Affidavits and Counter-Affidavit, is the 1st Appellant.
(iii) Thirdly, it must be shown that all the parties to be affected by the Respondent’s Notice of Contention are served.
In the instant case, the Appellants are the only parties to be affected by the Notice. The Judgment was secured against all the Respondents at the Trial Court jointly and severally. Attaching or extinguishing the liability of any of the parties to the action does not affect the remaining parties. Each is liable personally for the entire Judgment debt beside the joint liability.
(iv) Fourthly and majorly, the Judgment sought to be varied must be such that on facts and law it will in any event be affirmed.
The Judgment is binding on all the Appellants to the Claims of the Respondent. In essence the facts on the Record of Appeal and applicable law thereto can sustain the decision that the 1st – 3rd Appellants are liable for the arrest and torture of the Respondent. This is because the 1st Appellant himself arrested and tortured the Respondent and he is a staff of the 2nd and 3rd Appellants. Therefore, the 2nd and 3rd Appellants are vicariously liable for the acts of the 1st Appellant.
Again, the erudite law lord of the Apex Court, MOHAMMED, JSC at pages 9-10, paragraphs D-A in the case of JOHN EZE & ORS V. MATTHAIAS OBIEFUNA & ORS (1995) LPELR-1191 (SC) held that:
“A simple example of a request for variation of a judgment through a Respondent’s Notice is where the Respondent has been awarded some amount as damages and through proper evaluation of the evidence and the conclusion of the Court below he would be entitled to a higher award. See MAURINE DUMBO & ORS V. CHIEF STEPHEN IDUGBOE (1983) NSCC 22 AT 39 (1983) 1 SCNLR 29. The procedure could also be used where the variation tends to deal with an accidental slip or changes in the terms of the judgment if that be the only way he could be enabled to retain the judgment-

ETOWA ENANG & ORS V FIDELIS IKOR ADU & ORS (1981) 11-12 SC 25 AT 45.”

As can be gleaned at pages 4-10, paragraph 9 of the Affidavit in support of the Respondent’s Application, the Respondent’s case at the trial Court was that the 1st Respondent/Appellant was an agent or employee of the 2nd and 3rd Respondent namely the Nigeria Army and the Chief of Army Staff while the 4th, 5th and 6th Respondents at the trial Court were the agents or employees of the 7th, 8th, and 9th Respondents. It is also not in dispute that the Appellants explicitly admitted in their joint deposition of Counter-Affidavit and Written Address that the 1st Appellant was an agent or employee of the 2nd and 3rd Appellants as was rightly captured at Paragraphs 1, 2, 3, 8, and 20. See also paragraphs 5, 8, 14, 19 21 and 22 of the 1st – 3rd Appellants’ Counter-Affidavit in paragraphs 2.2, 4.2, 4.11 and 4.13 at pages 66, 69 and 70 of the Records.

The Trial Court extensively relied on the above evidence in making its findings at pages 216, 222, 223 and 224 of the Records that the arrest of Respondent was unlawful and/or unconstitutional.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

On the question of who tortured the Respondent, from the evidence adduced at the trial Court, the liability of the 1st Appellant is certain as he cannot exonerate himself from it. Just like criminal responsibility, where an offence is committed, every person who actually does the act or makes an omission which constitute the act, every person who aids another in the commission of the act and any person who counsels or procures any other person to do the act is deemed to have taken part in the commission of the act. See SUNDAY IYARO V. STATE (1988) LPELR-1575 (SC). Thus, for the mere fact that he (1st Appellant) was ordered by his employers to arrest the Respondent is still enough reason to tie him down to the act of torture. Therefore, the 1st Appellant is deemed to have tortured the Respondent on the footings that he actually did the act of arresting of the Respondent.

Notwithstanding, the synopsis of the above gist is that, the 1st-3rd Respondents/Appellants at the trial Court while making their case referred to the 1st Respondent/Appellant as an employee or agent of the 2nd and 3rd Appellants and not a Staff of the Prisons. Accordingly, the decision of the Trial Court at pages 199 lines 3-6 and 206 lines 11-16 of the Judgment/Records shall be varied with the current position that the 1st Appellant is an employee or agent of the 2nd and 3rd Appellants.

On whether the trial Court was right to have awarded the Respondent’s Claim against the 1st, 2nd and 3rd Appellants; having read through the entire Records, there is no doubt that the Trial Court was right when she held that the 1st Appellant participated in the arrest and torture of the Respondent. The law on vicarious liability is crystal as to the nature of responsibility which renders a person liable for the tort of another. It runs against the well-known rule of responsibility in tort which requires everyone to bear the consequences of his own action. The core features are: 1. A tort must be committed by one’s employee. 2. At the relevant time of the tort, the employee must be in the employment of the employer. 3. The tort must be committed in the course of employment of the employee and 4. Both the employer and the employee are joint tort feasors and are amenable to be sued by the victim.
The Supreme Court per MUHAMMAD, JSC at pages 27-28, paragraphs C-D in the case ofR. O. IYERE V. BENDEL FEED & FLOUR MILL LTD (2008) LPELR-1578 (SC) opined thus:
“The common law principles which govern the relationship of an employer and his employee in respect of tort committed by the latter is well stated in the Halsbury’s Laws of England vol. 45 (2) Fourth Edition, Paragraph 817: “where an employer expressly authorizes his employee to do a particular act which is in itself a tort, the employer is liable to an action in tort at the Suit of the person injured. His liability is equally clear where he ratifies a tort committed by his employee without his authority. Where the act which the employee is expressly authorized to do is lawful, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorize the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his own employer.” In 1952, Denning L. J (as he then was), stated the law as follows: “In all these cases it is of importance to remember that when a master employs a servant to do something for him, he is responsible for the servant’s conduct as if it were his own. If the servant commits a tort in the course of his employment, then the master is a tortfeasor as well as the servant.” See the case of JONES V MANCHESTER CORPORATION (1952) 2 QB 852 at page 870. For the employer (master) to be vicariously liable, it is necessary to prove that his employee (servant) has been guilty of a breach of duty towards the person injured.”
Following from the above, there is no doubt that the 1st Appellant was involved in the torturing of the Respondent as Exhibits “G” and “H” which were admitted in evidence at the Trial Court without objection speak for themselves. I am therefore in total agreement with the decision of the Trial Court at page 217 of the Records that the 1st Appellant participated in the arrest of the Respondent, took him forcefully into the Gboko Prison Premises where he was beaten thoroughly to the point where he sustained injury on his right eye.
It is pertinent at this juncture to say that since the 1st Appellant is an employee or agent of the 2nd and 3rd Appellants as rightly settled in their depositions, it suffices to say that any act, lawfully or unlawfully executed by the employee or agent (1st Appellant) in the course of performing his duties or services, is answerable by his master or employer. The master is answerable for every such wrong of the servant or agent being committed in the course of the service. Although the master may not have authorized the particular act to be done, it does not still make any difference because he has put his agent in his place to do that class of act, and he must be answerable for the manner in which his agent has conducted himself in doing his business.
Guided by the surrounding circumstances and the above cited authority, there is no doubt that the Trial Court was right to have awarded damages against the 1st, 2nd and 3rd Appellants since in law, the act of the 1st Appellant is the act of his master or employer. Again, following the scholarly enunciation of the Apex Court per IDIGBE, JSC at pages 7-8, paragraphs E-A in the case of MUTUAL AIDS SOCIETY LIMITED V. M. A. AKERELE (1965) LPELR-25263 (SC); the law is settled that although the particular act which gives the cause of action may not be authorized, if the act is done in the course of employment which is authorized, then the master is vicariously liable for the act of his servant. Consequently, the 2nd and 3rd Appellants being the employers of the 1st Appellant are also liable for the act of the 1st Appellant.
Predicated on the above, it is my considered view that since there exists an employer/employee relationship between the 1st, 2nd and 3rd Appellants, any act done in the course of service, authorized or unauthorized, if done within the scope of their authority, such an act shall be answerable by the employer.

Accordingly, this Appeal is unmeritorious and is hereby dismissed; the judgment of the Trial Court delivered per HON. JUSTICE HASSAN DIKKO, on the 21st day of June, 2017 is hereby affirmed. Parties are to bear their respective costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: My learned brother, Ignatius Igwe Agube, PJCA made available to me a draft copy of the lead Judgment, just delivered in which the appeal was determined as lacking in merit and thereby dismissed. I totally adopt my learned brother’s reasoning and conclusion reached therein as mine.
Accordingly, the judgment of Hon. Justice Hassan Dikko J. delivered on the 21st day of June, 2017 is hereby affirmed and parties are to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in complete agreement with the reasoning and resolutions arrived at. My lord incisively resolved the issues and points in issue and I have nothing more to add. I too dismiss the appeal and abide by the other orders made therein.

Appearances:

GENEVIEVE IKE, ESQ. For Appellant(s)

…For Respondent(s)