Legalpedia Citation: (2015-07) Legalpedia (CA) 41511

In the Court of Appeal

HOLDEN AT YOLA

Tue Jul 7, 2015

Suit Number: CA/YL/62/2014

CORAM

JUMMAI HANNATU SANKEY JCA

PARTIES

1. INSPECTOR GENERAL OF POLICE
2. PIUS SUNDAY (Commander, Police Mobile Unit, Wukari, Takum & Donga).
3. THE NIGERIA POLICE FORCE.EMEKA MBACHU

APPELLANTS

1. PETER O. IKPILA
2. BEM DUTSE

RESPONDENTS

AREA(S) OF LAW

APPEALS, CIVIL PROCEDURAL LAW, CRIMINAL PROCEDURAL LAW, LAW OF EVIDENCE, FUNDAMENTAL RIGHTS ENFORCEMENT, CONSTITUTIONAL LAW, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the Judgment of the Federal High Court sitting in the Jalingo Judicial Division, Taraba State. The Appellants were found culpable to the Respondents who were the Applicants in the court below for the infringement of the right to life of Terhila Ikpila and Loho Dutse and damages in the sum of N7, 500, 000. 00 each as compensation for the life of each of the deceased persons. The Appellants thoroughly dissatisfied with the said judgment had appealed to this court.

HELD

Appeal dismissed

ISSUES

1. Whether the trial Court was right in putting the facts presented by the Respondents on one side of the imaginary scale with that of the Appellants on the other side and weighted together to see which side preponderates?.
2. Whether the trial Court was right in rejecting the evidence of the Appellants and accepting that of the Respondents?
3. Whether the trial Court was right in holding that there was no legal justification by the agents of the Appellants to use guns on that fateful day of the incidence?

RATIONES DECIDENDI

APPEAL – WHEHER OR NOT AN ISSUE FOR CONSIDERATION IN AN APPEAL MUST NECESSARILY ARISE FROM A COMPLAINT AGAINST THE DECISION IN AN APPEAL TO BE COMPETENT

In any event, the law is settled that for an issue to be competent for consideration in an appeal, it must necessarily arise from a complaint against the decision on appeal. Where therefore, an issue raised by either an Appellant or a Respondent does not arise from the grounds of appeal, the issue is incompetent and liable to be struck out. Authorities on this point are legion.  See Gwede V. INEC & Ors. (2015) All FWLR (Pt. 767) 615 @ p. 645. See also Seagull Oil Ltd. V. Moni Pulo Ltd. (2011) 5 NWLR (Pt. 525) 540; Akere V. Gov. Oyo State (2012) All FWLR (Pt. 634) 53; Eke V. Ogbonda (2006) 12 SCM (Pt. 2) 59; Union Bank Plc. V. Astra Buildings (2010) 7 SCM 187; Chaimi V. UBA Plc (2010) 3 SCM 59; Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Borishade V. NBA Ltd. (2007) 1 NWLR (Pt. 1015) 217; Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514; Osafile V. Odi (1994) 2 SCNJ 1. PER – BIOBELE ABRAHAM GEORGEWILL JCA

REPLY BRIEF – EFFECT OF AN APPELLANT NOT FILING AN APPELLANT’S REPLY BRIEF AFTER BEING DULY SERVED WITH A RESPONDENT NOTICE

It is true that where an Appellant duly served with a Respondent’s Notice refuses or fails or neglects to join issue with the Respondent by way of filing an Appellant’s Reply thereto, any fresh or new issue raised not being covered by the issues canvassed in the Appellant’s brief may be deemed as having been conceded to by the Appellant in a manner akin to the effect of failure to file an Appellant’s Reply brief to new issues raised in a Respondent’s brief or in his Notice of Preliminary objection.  See Order 18 Rule 5, Court of Appeal Rules 2011. See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111. PER – BIOBELE ABRAHAM GEORGEWILL JCA

REPLY BRIEF – WHETHER OR NOT IT IS NECESSARY FOR AN APPELLANT TO FILE AN APPELLANT REPLY BRIEF WHERE THE ISSUE RAISED IN THE RESPONDENT’S NOTICE IS ONE ALREADY CANVASSED IN THE APPELLANT’S BRIEF

It is also true that where the issue raised in the Respondent’s Notice is one touching on an issue already canvassed in the Appellant’s brief, as in the instant case, there is no need for the filing of an Appellant’s Reply brief. In such circumstances, the inference that the Appellant has conceded to the issue raised in the Respondent’s brief or Notice does not arise. This latter scenario being the case in this appeal, I hold firmly that the non filing of Appellant’s Reply, contrary to the Respondents’ counsel contention does not raise any inference of concession by the Appellants by their non filing of Appellants’ Reply to the Respondents’ Notice since issues have been properly joined on the existing briefs of the parties on the issue raised in the Respondents’ Notice. It is therefore, left for this court to consider these issues as properly joined by the parties and to resolve them one way or the other on the merit.  PER – BIOBELE ABRAHAM GEORGEWILL JCA 

APPELLANT’S REPLY BRIEF – EFFECT OF NON-FILING OF APPELLANT’S REPLY TO NEW OR FRESH ISSUES RAISED IN THE RESPONDENT’S BRIEF, NOTICE OR PRELIMINARY OBJECTION

At any rate, I think I should also point it out at once that the mere non filing of Appellant’s Reply to new or fresh issues raised either in a Respondent’s brief or Notice or Preliminary objection alone does not ipso facto without more confer merit on such new issues which in law will still be considered on their own merit and not to be granted or upheld as a matter of course merely for failure to file Appellant’s Reply brief. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RESPONDENT’S NOTICE – PURPOSE OF A RESPONDENT’S NOTICE

Now, the purpose of a Respondent’s Notice is that the judgment or decision appealed against should be affirmed on grounds other than those relied upon by the court below in reaching its decision appealed against. It is not a carte blank or an open cheque on which a Respondent could raise every contentions as he so wishes since in law the grounds so relied upon by the Respondent must be apparent on the face of the printed record of appeal, having regards to the facts of the case, the applicable law and the judgment appealed against. See Order 9 Rule 2, Court of Appeal Rules 2011, which provides as follows:

“ A Respondent who desire to contend on the appeal that the decision of the court below should be affirmed on grounds other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention”

In Gwede V. INEC (Supra) @ p. 644, Onnoghen, JSC., had admirably captured the real essence of a Respondent’s Notice when he stated thus:

“The purposes/subject/intention of a Respondent’s Notice is that the judgment of the lower court be confirmed on grounds other than those relied upon by that court in reaching the decision on appeal. The grounds relied upon in the Respondent’s Notice must be apparent on the record having regards to the facts of the case, the law applicable thereto and the judgment on appeal. A Respondent’s Notice is therefore, not an open cheque….”  PER – BIOBELE ABRAHAM GEORGEWILL JCA

 

GROUND OF APPEAL – WHETHER OR NOT THE GROUNDS IN A RESPONDENT’S NOTICE MUST BE APPARENT ON THE FACE OF THE RECORD

The law as I had earlier reiterated in this judgment is that the reasons or grounds in a Respondent’s Notice must be apparent on the face of the records as it not an open or blank cheque given to a Respondent to contend just anything he wishes to contend even without reference to the facts of the case, the applicable law and the judgment appealed against. There being no where in which the court below had relied on the counter affidavit evidence of the Appellants in making any of its findings of facts and the resultant decisions in the judgment appealed against, I hold firmly that the Respondents’ Notice is clearly misconceived and lacking in any iota of merit and is hereby dismissed and discountenanced.  See Gwede V. INEC (Supra) @ p. 644. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RESPONDENT NOTICE – A RESPONDENT DESIROUS OF FILING A RESPONDENT’S NOTICE MUST PONDER RETROSPECTIVELY IN THE LIGHT OF THE FINAL CONCLUSIONS REACHED IN THE JUDGMENT IN HIS FAVOUR

I consider it pertinent at this juncture to point it at once that a Respondent wishing and desirous of filing a Respondent’s Notice must ponder on it more seriously and retrospectively in the light of the final conclusions reached in the judgment in his favour and not to venture or dabble into it lightly since as inherent in its nature and purport a Respondent’s Notice presupposes or concedes that the ground(s) relied on in favour of the Respondent in the judgment appealed against was wrong and the probability of the Respondent’s Notice, as in the instant case, being found to be lacking in merit. The saving grace for such a Respondent however, is the well settled position of the law that once the judgment of the lower court is correct, the fact that the reason relied upon is wrong will not by itself alone result into a setting aside of the judgment since an appellate court is not so much concerned with whether the reason(s) adduced was right or wrong but rather concerned with whether the decision or conclusion reached was correct or wrong, if correct the reason given whether right or wrong is of no serious moment. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVALUATION OF EVIDENCE – THE PRIMARY DUTY OF A TRIAL COURT TO EVALUATE RHE EVIDENCE LED BEFORE IT BY PARTIES IN THE LIGHT OF THE ISSUES OF FACTS DISCLOSED BY THE PARTIES

It is thus the indisputable primary duty of the trial court not only to merely review or restate the evidence led before it by the parties but to critically appraise and evaluate it in the light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence. Consequently, once a trial court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment, that is the end of the matter as no appellate court worth its name and honour would interfere where the conclusion of the trial court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Invetstments Ltd. (2002) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23. PER – BIOBELE ABRAHAM GEORGEWILL JCA 

APPELLATE COURT – WHEN WILL AN APPELLATE COURT BE DUTY BOUND TO RE-EVALUATE THE EVIDENCE ON THE PRINTED RECORD

It is thus the law that it is only when a trial court had not carried out its primary duty correctly or shrieked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate court will be duty bound to interfere to re – evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Olanade V. Sowemimo (2014) 9 SCM 106 @p. 121; CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State (2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Ojokolo V. Alamu (1998) 9 NWLR (Pt. 565) 225; Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574; Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182; Nwoti V. Mbonu (2012) QRR 53; Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458; Bida V. Abubakar (2011) 5 NWLR (Pt. 144) 384; Mini Lodge Ltd. Ngei (2010) All FWLR (Pt. 506) 1806 PER – BIOBELE ABRAHAM GEORGEWILL JCA

RE-EVALUATION OF EVIDENCE – WHEN AN APPELLATE COURT WOULD READILY INTERFERE TO RE-EVALUATE THE EVIDENCE IN THE PRINTED RECORD

An appellate court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts. However, it is not the law that a judgment of a court is bound to be reversed on account of every errors found in it but rather the law is that an error that will lead to a reversal of the judgment of a court must be one that is substantial and had caused a miscarriage of justice. See Oladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See also NBC Ltd. V. Olarenwaju (2007) 5 NWLR (Pt. 1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @ p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247. PER – BIOBELE ABRAHAM GEORGEWILL JCA

ADMITTED FACTS – WHETHER OR NOT ADMITTED FACTS NEED FURTHER PROOF

The law as I have stated earlier is well settled that facts admitted need no further proof. It is also the law that facts deposed to in an affidavit if not specifically denied are deemed to have been admitted unless the facts not denied are palpably false. See Wunali V. Uche (2010) 2 NWLR (Pt. 1179) 582 @ p. 586. See also Azeez V. The State (1986) 2 NWLR (Pt. 23) 541; Nwosu V. ISESA (1990) 2 NWLR (Pt. 135) 688 @ p. 701; Egharabe V. Osagie (2010) 180 LRCN 45 @ p. 50. PER – BIOBELE ABRAHAM GEORGEWILL JCA

PROOF – HE WHO ALLEGES MUST PROOF

This is so because it is well settled law that it is he who positively alleges that prove and not he who makes a negative assertion. See Ayinde V. Abiodun V. (1999) 8 NWLR (Pt. 616) 587. See also Ewo V. Ani (2004) 3 NWLR (Pt. 861) 610; Trade Bank Ltd. V. Chiami (2003) 13 NWLR (Pt. 936) 158; Osawura V. Ezeiruka (1978) 6 – 7 SC 33; Umeojiako V. Ezenamuo (1990) 1 NWLR (Pt. 126) 225. PER – BIOBELE ABRAHAM GEORGEWILL JCA

ADMITTED FACTS – WHETHER OR NOT ADMITTED FACTS NEED FURTHER PROOF

The law as I have stated earlier is well settled that facts admitted need no further proof. It is also the law that facts deposed to in an affidavit if not specifically denied are deemed to have been admitted unless the facts not denied are palpably false. See Wunali V. Uche (2010) 2 NWLR (Pt. 1179) 582 @ p. 586. See also Azeez V. The State (1986) 2 NWLR (Pt. 23) 541; Nwosu V. ISESA (1990) 2 NWLR (Pt. 135) 688 @ p. 701; Egharabe V. Osagie (2010) 180 LRCN 45 @ p. 50. PER – BIOBELE ABRAHAM GEORGEWILL JCA

EVIDENCE – THE POSITION OF THE LAW ON AN UNCHALLENGED OR UNCONTROVERTED EVIDENCE OF A PARTY

The Law is now firmly well established that evidence of a party which is unchallenged and uncontroverted by the adverse party if credible is good evidence on which the court should act to make appropriate findings. See Ibginovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514. See also Winalu V Uche (Supra) @ p. 586; Azeez V. The State (Supra) @ p. 541; Nwosu V. ISESA (Supra) @ p. 701.  PER – BIOBELE ABRAHAM GEORGEWILL JCA

FINDINGS OF A TRIAL COURT – THE POSITION OF THE LAW ON FINDINGS OF A TRIAL COURT WHERE SUCH FINDINGS WAS BASED ON THE ADMISSIBLE EVIDENCE LED BEFORE IT BY THE PARTIES

The law is trite that where the findings of a trial court was based on the admissible evidence led before it by the parties and is thus both impeccable and unimpeachable, an appellate court has no business interfering with such findings to disturb such correct findings, which must be allowed to stand. See Rabiu Hamza V. Peter Kure (2010) 10 NWLR (Pt. 1203) 630. See also Woluchem V. Gudi (Supra) @ p. 91; Maya V. Stocco (1968) I All NLR 441; Onasanya V. Nwoko (1974) 6 SC 69; Lawal V. Dawodu (1972) 1 All NLR (Pt. 2) 270; Mogaji V. Odofin (1978) 4 SC 91. PER – BIOBELE ABRAHAM GEORGEWILL JCA

DECISION OF A TRIAL COURT – THE POSITION OF THE LAW ON THE DECISION OF A TRIAL COURT WELL FOUNDED BOTH IN LAW AND FACTS

Where an appellate court finds that the decision of the trial court is well founded both in law and on the facts, such a decision must be affirmed and allowed to stand. This is so because an appellate court is mainly concerned with whether the decision appealed against is right or wrong and not with whether the reasons given for arriving at such decision are right or wrong. Thus even where the reasons given turns out to be wrong or in error but in so far as the decision arrived at is correct, an appellate court would still have no business interfering with such a decision as it is only when such misdirection had misled the trial court to arrive at a wrong decision that an appellate court will interfere to make the proper findings so that justice would be done to the parties. See Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134 @ p. 179. See also Ukejianya V. Uchendu 19 WACA 46; Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198; Ojo Adeyeye V. The State ( 2013) All FWLR (Pt. 704) 108 @ p. 135. PER – BIOBELE ABRAHAM GEORGEWILL JCA

AFFIDAVIT – WHETHER OR NOT EVERY CONFLICT ARISING FROM AFFIDAVIT EVIDENCE IS RESOLVED BY ORAL EVIDENCE

The law is that it is not every conflict arising from affidavit evidence that would warrant a resort to oral evidence for its resolution by the court. The court can and always is clothed with the power to evaluate, appraise and prefer one party’s evidence to that of the other party on reasonable grounds in order to resolve conflicts, particularly those not touching on the substance and of no materiality to the crux of the cases of the parties. Therefore, it does not call for oral evidence to resolve every seeming conflict in affidavit evidence. At any rate, an affidavit and a counter affidavit, as even the name implies, must necessarily save where it consists of admissions conflict on facts and it is only where the court is unable to resolve same on the facts as presented by the parties, including using documentary evidence where available that the need to call for oral evidence will arise. See Nwosu V. ISESA (Supra) @ p. 688. See also LSDPC V. Adold Stamm Int. Nig Ltd. (1994) 7 NWLR (Pt. 358) 545; Okada Airlines Ltd. V. FAAN (Supra) @ p. 22. PER – BIOBELE ABRAHAM GEORGEWILL JCA

CONTRADICTIONS OF FACTS – WHAT WOULD AMOUNT TO CONTRADICTIONS AS WOULD RENDER THE CASE OF A PARTY WHOLLY REJECTED AS UNRELIABLE

In law what would amount to contradictions as would render the case of a party to be wholly rejected as unreliable are not minor discrepancies on irrelevant issues or facts but contradictions on material facts on the crux or substance of the case and going to the root of the party’s case. See Unipetrol Nig. Plc. V. Adireje (2004) All FWLR (Pt. 231) 1238 @ p. 1277. See also Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832. PER – BIOBELE ABRAHAM GEORGEWILL JCA

RIGHT TO LIFE – THE RIGHT TO LIFE IS BOTH SACRED AND SACROSANCT

The right to life is both sacred and sacrosanct. It is the highest and most important of all the fundamental rights of the Citizen as constitutionally guaranteed by Section 33(1) in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 as amended, which provide thus:

“33 (1): Every person has a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”

Every citizen of this Country is by law entitled to his life and which shall not save as permitted by law be deprived or snuffed out of him. In law therefore, every taking of or deprivation of the life of the citizen by another is illegal, unlawful and unconstitutional save if it is lawfully justified or excused by law within the exceptions expressly provided for in Section 33(2) of the Constitution of Nigeria 1999 as amended, which provides thus:

33(2): A person shall not be regarded as having been deprived of his life in contravention of this Section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary:-

1. For the defence of any person from unlawful violence or for the defence of property;

1. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

1. For the purpose of suppressing a riot, insurrection or mutiny”

The onus is therefore, on the person who has deprived another citizen of his life to show that the killing was justified or excused by law. PER – BIOBELE ABRAHAM GEORGEWILL JCA

 

POLICE FORCE – ESTABLISHMENT AND FUNCTIONS OF THE POLICE FORCE

By Section 214 (2) (b) of the Constitution of Nigeria 1999 as amended the Nigeria Police Force established under Subsection (1) of Section 214 is primarily saddled with the enormous responsibility of maintaining law and order in the Society. A very difficult, tasking and at times dangerous duty every reasonable person living in this country would readily admit. These functions as are more specifically provided for in Section 4 of the Police Act is for the prevention and detection of crime, apprehension of offenders, the preservation of life and property and the due enforcement of all laws and regulations which they are directly charged with and shall also perform such military duties within and outside Nigeria as may be required of them by or under the authority of the Police Act or any other Act of Parliament in Nigeria. PER – BIOBELE ABRAHAM GEORGEWILL JCA

POLICE FORCE – POWERS OF THE POLICE FORCE

It is my view that the purport of the above provision of the Police Act and the sacrosanct provisions of Section 214(2) (b) of the Constitution of Nigeria 1999 as amended is that it confers on the Police Force very enormous powers and discretion in the performance of their duties including the powers to arrest and detain or to prevent or detect crimes and the courts are always ready to encourage the Police in the due performance of their constitutionally and lawfully guaranteed duties. It is for this reason and many other germane reasons that the courts are very cautious and reluctant not to interfere unjustifiably and unnecessarily with the discharge of their functions except in very clear cases of infringement on the fundamental rights of the citizen as enshrined and constitutionally guaranteed.  See Fawehinmi V. IGP (2005) 1 NCC 415. See also Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686. PER – BIOBELE ABRAHAM GEORGEWILL JCA

POLICE FORCE – WHETHER OR NOT THE POWERS VESTED IN THE POLICE FORCE GIVES THEM A CARTE BLANK POWER TO EXERCISE IT WITH IMPUNITY OR IN CONTRAVENTION OF THE LAWS OF THE LAND

However, it must be pointed out at once that these very enormous powers vested in the Police do not give them a carte blank power to exercise it with impunity or in reckless disregard and in contravention of the laws of the land to infringe upon the inalienable fundamental rights of the citizens as constitutionally guaranteed in this country, of which the most crucial is the right to life which deprivation without lawful justification is most impossible to restore. The right to life is the most inviolable of all the fundamental rights of the citizen as human beings under our laws and must be protected at all times by the Police paid from the tax payers money. The Police must in all circumstances carry out its duty with due diligence and reasonable care for the safety of the innocent, unarmed and defenceless citizens of this country. The standard of care expected of the Police in the due discharge of its duty is an objective one as permitted by law but never a subjective one and is thus not left to their whims and caprices. See COP V. Obolo (1989) 5 NWLR (Pt. 120) 130. See also Chukwuma V. COP (1964) NNLR 21; Mcadle V Egan (1933) 156 TLR 412.

The rationale for the above succinct position of the law would seem to be that at all times in the discharge of their duty, the Police and indeed all other security agencies of Government at whatever level in Nigeria charged with the responsibility of  keeping law and order must bear in mind and take into consideration the two sided interest of the public, whom they serve namely: the protection afforded by law to the fundamental rights of the citizen, particularly the rights to life, liberty and dignity of the human person on the one hand and the public policy requirement to ensure the un-interfered with performance of the primary duty of the Police in the protection of life and property, prevention and detection of crime for the protection of the generality of the citizenry of this country. I say no more! PER – BIOBELE ABRAHAM GEORGEWILL JCA

 

STANDARD OF PROOF – WHAT STANDARD OF PROOF CONNOTES

On the standard of proof, it is the law as agreed to by both counsel that an allegation of crime even if it is made in a civil proceedings but once it is central to the claim must be proved beyond reasonable doubt by the party who alleges it. This is the law and it is a very sound law. See Section 135(1) of the Evidence Act 2011. See also Odulani V. Nigerian Navy (2011) 6 NWLR (Pt. 1244) 589. PER – BIOBELE ABRAHAM GEORGEWILL JCA

FUNDAMENTAL RIGHTS ENFORCEMENT – WHETHER OR NOT FUNDAMENTAL RIGHTS ENFORCEMENT PROCEEDINGS ARE STRICTLY CIVIL OR CRIMINAL

However, it must be borne in mind that proceedings under the Fundamental Rights Enforcement Procedure Rules are neither strictly civil nor criminal proceedings. They are sui generis, being proceedings of their own kind. At best therefore, they are an hybrid proceeding, taking on some of the features of the different types of proceedings in our courts but still remaining sui generis. See Jim Jaja V. COP Rivers State (2013) 22 WRN 39 @ p. 66. PER – BIOBELE ABRAHAM GEORGEWILL JCA

OFFENCE – WHAT CONSTITUTES THE MENS REA OF THE OFFENCE OF CULPABLE HOMICIDE OR MURDER

In my view and I so hold since in law a person intends the natural consequences of his act, the act of shooting at an unarmed person lying face down on the ground will be intended to cause either of two things, namely: (a): to grievously harm or cause grievous bodily injury to that person or (b): to kill that person. In law either of these two intentions constitutes the third most crucial mental element, the mens rea, of the offence of culpable homicide or murder. In my finding therefore, this intention was clearly and credibly proved against the Appellants by the Respondents on the printed record. See Ibikunle V. The State (Supra) @ p. 209. See also The State V. Usman (2004) All FWLR (Pt. 226) 231; Olalekan V. The State (2002) FWLR (Pt. 91) 1065; Hyman V. DPP (Supra) @ p. 41.  PER – BIOBELE ABRAHAM GEORGEWILL JCA     

FINDING OF A TRIAL COURT – EFFECT OF AN ABSENCE OF ANY APPEAL AGAINST A FINDING OF THE TRIAL COURT

It is also the law that in the absence of any appeal against a finding of the trial court, such a finding is valid and remains rightly or regrettably if wrongly, the position as between the parties and therefore binding on them. I therefore, would let this aspect of this case rest in peace there being no appeal on it. See Uwazurike V. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503. See also Abubakar V. Bebeji Oil & Allied Products Ltd. (2007) 8 NWLR (Pt. 1066) 319. PER – BIOBELE ABRAHAM GEORGEWILL JCA

FUNDAMENTAL RIGHTS ENFORCEMENT – THE ESSENCE OF PROCEEDINGS UNDER FUNDAMENTAL RIGHTS ENFORCEMENT PROCEDURE RULES

My lords, the true essence or import of the proceedings under the Fundamental Rights Enforcement Procedure Rules for the protection and enforcement of the fundamental rights of the citizen was very recently captured in the pronouncement of the Supreme Court in Jim Jaja V. COP Rivers State (Supra) at p; 66 where His lordship, Muntaka – Coomassie, JSC., had waxed so succinctly thus:

“The procedure for the enforcement of the fundamental human right was specifically promulgated to protect the Nigerian’s fundamental right from abuse and violation by authorities and persons. When the breach of the right is proved, the person is entitled to compensation even if no specific amount is claimed.”

PER – BIOBELE ABRAHAM GEORGEWILL JCA

 

FUNDAMENTAL RIGHTS ENFORCEMENT – THE POSITION OF THE LAW ON COMPENSATION WHERE AN APPLICANT PROVES A VIOLATION OF ANY FUNDAMENTAL RIGHTS ENSHRINED IN THE CONSTITUTION

The law is now trite that in proceedings for the enforcement of the fundamental right of the citizen in our courts, unlike in ordinary civil proceedings, once an applicant proves a violation of any of the fundamental rights as enshrined in Chapter IV of the Constitution of Nigeria 1999 as amended he is entitled to compensation even where no specific amount was claimed. However, where a specific amount was claimed, it is for the court to consider the claim and determine in its opinion the amount that would be justified to compensate the victim of the breach. See Jim Jaja V. COP Rivers State (Supra) @ p. 66. PER – BIOBELE ABRAHAM GEORGEWILL JCA

GROUND OF APPEAL – EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUE FOR DETERMINATION IS DISTILLED

The law is now well settled and admits of no disputations or arguments no matter how brilliant or tempting that a ground of appeal from which no issue for determination is distilled is deemed abandoned and liable to be struck out. See E. B. Ukiri V. Geco Prakla Nig. Ltd (2010) 43 NSCQR 265 @ pp. 278 – 279. PER – BIOBELE ABRAHAM GEORGEWILL JCA

AWARD OF DAMAGES OR COMPENSATION – WHETHER OR NOT AN APPELLATE COURT WILL INTERFERE AND DAMAGES AWARDED BY A TRIAL COURT WHERE IT IS SHOWN THAT THE AMOUNT AWARDED IS EITHER TOO HIGH OR TOO LOW

I am aware and have indeed averted my mind to all the principles of law governing the award of damages or compensation and the permissible grounds for intervention by an appellate Court to either increase or reduce award made by a trial court, the most basic of which principles is that an appellate court will interfere and upset damages awarded by a trial court where it is shown that the amount awarded is manifestly too high or too low or that the trial court has acted on wrong principles of law. This is so because it must always be borne in mind, particularly by trial courts, as it is very important, that assessment and measure of damages or compensation is not a gold mine for the successful litigant but meant truly and justifiably to reasonably compensate the victim for the wrong committed against him. See the locus classicus of Flint V. Lovell (1935) 1 KB 354 @ p. 360 per Greer, LJ. See also African Newspaper ltd. V. Ciroma (1996) 1 NWLR (Pt. 423) 156; Hassan V. Tade (2011) 19 WRN 130; Bhojossons Plc. V. Daniel Kalio (2006) All FWLR (Pt. 312) 2038 @ p. 2064; Gari V. Serafina Nig. Ltd. (2008) 2 NWLR (Pt. 1070) 1 @ p. 20; Chief Edosa V. FBN Plc. (2011) WRN 107; Baker Marine V. Chevron (2006) 6 SCNJ 124; Chief Olokunlade V. Chief Ademiloyo (2011) 35 WRN 41; Abiara V. Regd. Trustees M.C.N. (2007) 11 NWLR (Pt. 1045) 280 . PER – BIOBELE ABRAHAM GEORGEWILL JCA   

ASSESSMENT AND AWARD OF DAMAGES – WHETHER OR NOT THE COMMON LAW PRINCIPLES OF ASSESSMENT AND AWARD OF DAMAGES APPLIES TO MATTERS OF FUNDAMENTAL RIGHTS ENFORCEMENT

In all the above cases, none considered the value or monetary estimate to be placed on the human life of a citizen cut short in its prime of life by the Police as in the instant case. Happily though, the Supreme Court had pronounced so loud and clear with so much finality and I have read it, listened to it and heard it and I bow to diligently obey it that the common law principles of assessment and award of damages do not apply to matters brought under the Fundamental Rights Enforcement Procedure Rules in our courts. This is what the Supreme Court said in Jim Jaja V. COP Rivers State (Supra) @ p. 66, where Muntaka – Coomassie, JSC., had emphatically pronounced thus:

“The Common law principles on the award of damages do not apply to matter brought under the enforcement of fundamental human rights procedure……” PER – BIOBELE ABRAHAM GEORGEWILL JCA

 

CASES CITED

STATUTES REFERRED TO

Court of Appeal Rules 2011

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Police Act

Fundamental Rights Enforcement Procedure Rules

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