Legalpedia Citation: (2015) Legalpedia (CA) 91293

In the Court of Appeal

Holden at Gombe

Tue Jul 7, 2015

Suit Number: CA/YL/37/2013

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL JUSTICE, COURT OF APPEAL

PARTIES

1. MALAM AHMADU SAMBO
2. ALHAJI WUKARI SAMBO
3. LUBABATU SAMBO
4. BILEYA IBRAHIM

APPELLANTS

1. THE NIGERIA ARMY COUNCIL
2. THE NIGERIA ARMY
3. LIEUTENANT A.S. PAIKO
4. RETIRED CAPTAIN DOUGLAS NDATSE YAHAYA
5. UBALE ANGO
6. MAIMAKO MAISHINKAFA FAROUK

RESPONDENTS

AREA(S) OF LAW

LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, CRIMINAL LAW, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an Appeal against the Judgment of the Federal High Court, Yola Division.

It is the Appellants’ case that the Appellants filed this Application to enforce their constitutionally guaranteed fundamental human rights which they alleged were abused by the Respondents. The basis of the Appellants’ suit is that some soldiers numbering about 25 under the leadership of the 3rd Respondent brought to Donga by the 4th Respondent from the 93rd Battalion of the 1st and 2nd Respondents in Takum for intimidating, harassing, and molesting perceived political opponents of the 4th Respondent, invaded the family houses of the Appellants, forcefully broke into the Appellants’ rooms, picked on male inmates thereat, and beat, maimed and tortured them in the presence of their weeping mothers, wives, children and younger ones.

The 1st 2nd and 3rd Respondents, on their part, contended that, as a result of a political vendetta, the 4th Respondent procured the services of the 1st 2nd and 3rd Respondents illegally to execute a political witch-hunt by the 4th Respondent who came to invade their family house, maim, torturing, intimidating and beating their family members. The 1st, 2nd and 3rd Respondents denied these allegations and instead contended that, during the general election of April, 2011, a security apparatus was put in place by the Federal Government which included the Nigerian Army, Nigerian Navy, Nigerian Air-Force and the Nigerian Police code-named ‘Operation Safe Conduct’ in Taraba State. As a result of skirmishes around Gyatta Aure area of Donga where one Abdul Sambo cut off the left hand of Tanimu Hamza which led to a general uproar in Donga, the security outfit code-named ‘Operation Safe Conduct’ came in to restore peace and effect the arrest of the culprits, who were immediately handed over to the police for further investigation. The trial Court dismissed the Appellants’ claim for failing to prove the alleged infringements of their fundamental rights. It further held that the arrest of the Appellants was justified as it was based on reasonable suspicion of the commission of a criminal offense. It is based on this decision that the Appellants filed this Appeal.

 

HELD

Appeal Dismissed

ISSUES

• Whether the learned trial Judge was right in holding that the Counter Affidavit of the 1st 2nd and 3rd Respondents in opposition to the Appellants’ originating motion is competent and whether the learned trial Judge was justified in relying on the said Counter Affidavit? Whether the learned trial Judge properly evaluated the evidence adduced in this suit and was right in holding that the Appellants have not proved infringements of their fundamental rights by the Respondents and in dismissing the Appellants’ Application for the enforcement of their fundamental human rights and refusing the reliefs sought?

 

RATIONES DECIDENDI

AFFIDAVIT – THE POSITION OF THE LAW WHERE A DEPONENT DEPOSES TO FACTS NOT WITHIN HIS PERSONAL KNOWLEDGE

Where a deponent to an affidavit, such as this counter-affidavit, deposes to facts which are not within his personal knowledge but from information not necessarily obtained from a party to the suit, and he believes such fact to be true, once the particulars as specified in Section 115 of the Evidence Act are disclosed, such deposition can be relied upon by the Court. In FGN V AIC Ltd (2006) LPELR-6152(CA); (2006) 4 NWLR (Pt. 970) 337 at 357-358, I.T. Muhammad, JCA (as he then was) held thus:

“The trite position of the law is that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief. When such belief is derived from information received from another person, the name of his informant must be stated in the affidavit, and he must state reasonable particulars of such an informant including the time, place and circumstances of the information. Sections 88 and 89 of the Evidence Act; Abu V Alele Williams (1992) 5 NWLR (Pt 241) 340; Sonnar (Nig) Ltd V Partenreedri M.S. Nordwilzd (1987) 4 NWLR (Pt. 66) 520. It is only when a deponent withholds the source of his information that such an affidavit can be termed to be on hearsay and therefore inadmissible as being contrary to Sections 86, 88 and 89 of the Evidence Act. I do not think of such a situation in the present case. The preliminary objection to the Counter-Affidavit of the Respondents lacks merit and it is hereby dismissed.”

See also PDP V Phillips (2010) LPELR-8980(CA); Ajayi Farms Ltd V NACB Ltd (2003) 4 NWLR (Pt. 810) 427 at 454-455; NIDB V Fembo (1997) 2 NWLR (Pt. 489) 543 at 560-561. PER – JUMMAI HANNATU SANKEY, JCA.

EVIDENCE – THE POSITION OF THE LAW ON DISCREPANCY IN EVIDENCE

It is settled law that two pieces of evidence contradict one another when they are by themselves inconsistent. A discrepancy may occur when a piece of evidence falls short of or contains a little more than what the other piece of evidence says or contains, some minor differences in detail. On the other hand, minor discrepancies do not destroy the credibility of the evidence. It follows therefore that for whatever contradiction that may exist in the affidavit evidence to be relevant so as to render same unreliable by the court, the contradictions must be material to the substance of the action, otherwise, it is immaterial and therefore irrelevant. In Eyo V State (2009) LPELR-8686(CA), this Court reiterated the exposition of the settled law on contradictions as follows:

“A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in the details between them. Two pieces of evidence contradict one another when they are by themselves inconsistent, while a discrepancy may occur when a piece of evidence falls short of or contains a little more than what the other piece of evidence says or contains some minor differences in their details.”PER – JUMMAI HANNATU SANKEY, JCA.

 

EVIDENCE – WHETHER OR NOT MINOR DISCREPANCY IN EVIDENCE DETERMINES THAT THE EVIDENCE OF THE WITNESS IS NOT REHEARSED

There are bound to be some differences in details, but the overall account will be the same in substance. This is what makes us human and what even determines that the evidence of the witnesses is not rehearsed or that the witnesses are not schooled. This nature of inconsistency does not touch on the substance of the issue which is, whether the rights of the Appellants were breached during their arrests in the period in question. They are mere discrepancies which cannot fall into the category of contradictions material to the issues in contention. See Uwagboe V State (2008) LPELR-3444(SC); (2008) 12 NWLR (Pt. 1102) 621; Agbo V State (2006) LPELR-242(SC); (2006) NWLR (Pt. 977) 545; Wankey V State (1993) LPELR-3470(SC); (1993) 5 NWLR (Pt. 295) 542; Gabriel V State (1989) 5 NWLR (Pt. 457) 468-469. PER – JUMMAI HANNATU SANKEY, JCA

PROVE – THE POSITION OF THE LAW ON A PARTY WHO ASSERTS

The law is settled that he who asserts must prove. From a holistic consideration of the affidavit evidence put forward by the Appellants, they woefully failed to establish that the Respondents breached their fundamental rights by inflicting the kind of torture, etc, they described in their application for the enforcement of their fundamental rights. PER – JUMMAI HANNATU SANKEY, JCA.

RIGHT TO PERSONAL LIBERTY – WHETHER OR NOT THE RIGHT TO PERSONAL LIBERTY IS A SHIELD AGAINST CRIMINAL INVESTIGATION OR PROSECUTION

As was well-articulated by the learned trial Judge, the right to personal liberty is not a shield against criminal investigation or prosecution. By Section 35 (1) of the 1999 Constitution (as amended), every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save for the purpose of bringing him before a court, in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence. Where such is the case, a person’s right to personal liberty may be impaired temporarily. As such, no citizen’s freedom or liberty is absolute. The freedom or liberty of a citizen ends where that of the other citizen starts. In addition, the Police, and indeed all security agencies, can exercise some measure of discretion in the performance of their duty to maintain law and order, in the investigation of crime and arrest. Ultimately, the Constitutional presumption of innocence is not a shield against arrest. See Anekwe V Aniekwensi (2009) 10 NWLR (Pt.) 18; Dokubo V FRN (2007) 152 LRCN 156; A-G, Anambra State V Uba (2005) ALL FWLR (Pt. 277) 909; & Fawehinmi V IGP (2002) 7 NWLR (Pt. 767) 606. PER – JUMMAI HANNATU SANKEY, JCA.

RIGHT TO FREEDOM – WHETHER OR NOT ANY CITIZEN IS ABOVE LAWS OF THE LAND OR ARE SUBJECT TO THE POLICE POWERS OF ARREST AND DETENTION FOR THE PURPOSE OF INVESTIGATION

The law is well settled that no citizen of this country no matter his status is above the laws of the land and thus subject to the Police powers of arrest and detention for the purposes of investigation upon reasonable suspicion of having committed a criminal offence.  It is a truism that the Constitution of the Federal Republic of Nigeria 1999 as amended neither intended nor indeed conferred any absolute right on any citizen to freedom from being investigated and for and for that purpose being arrested and detained on suspicion of having committed a criminal offence or on criminal allegation against them save as provided for by the same Constitution in respect of the holders of the exalted offices of President, Vice President and Governors while in office. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

RIGHT TO PERSONAL LIBERTY – CIRCUMSTANCES IN WHICH THE RIGHT TO PERSONAL LIBERTY OF A CITIZEN MAY BE CURTAILED BY LAW

If it were otherwise and every citizen were to be entitled to absolute freedom for arrest and detention for the purpose of investigation by the Police and other Security agencies of the State in legally excused circumstances, it seems to me that chaos and anarchy would be let loose on the society.

It is for the above reason amongst other germane reasons that the courts do not make it an habit of interfering unnecessarily and unjustifiably with the powers of the Police to investigate matters reported to it against a person and where there is reasonable grounds to arrest and detain the person under due process of the law as anything otherwise in my view will be an open invitation to anarchy and chaos in the land save in very clear cases of infringement on the rights to personal liberty and other fundamental rights of the citizen.  See Fawehinmi V. IGP (2005) 1 NCC 415.  See also Aigbadion V. The State (2000) 7 NWLR (Pt. 666) 686.

This explains in my view why the Constitution of Nigeria 1999 as amended while guaranteeing the citizen’s right to personal liberty under Section 35 thereof also provides for circumstances in which the said right may be curtailed by law upon reasonable suspicion that a person has committed a criminal offence.  See Section 35 Subsection 1, paragraph C thereof, which provides thus:

“For the purpose of bringing him before a court, in execution of the order of court or upon reasonable suspicion of his having committed a criminal offence or to such extent as may be reasonably necessary to prevent his committing a criminal offence”.

See also FRN V. Ekwenugo (2007) 3 NWLR (Pt. 1021) 209. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

TEST OF REASONABLENESS – THE POSITION OF THE LAW ON THE TEST OF REASONABLENESS

However, the test of reasonableness is objective not subjective but being subjective does not mean merely to make assurance doubly sure before effecting an arrest.  Once there is a reasonable suspicion an arrest by the Police is justified.  See COP V. Obolo (1989) 5 NWLR (Pt. 120) 130. See also Chukwuka V. COP. (1964) NNLR 21; Mcadle V. Egan (1933) 156 TLR 412 per Lord Wright. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

THE NIGERIA POLICE FORCE – THE ENORMOUS RESPONSIBILITY OF THE NIGERIA POLICE FORCE

It must be pointed out at once that the Nigeria Police Force as established under Section 214 of the Constitution of Nigeria 1999 as amended is primarily saddled with the enormous responsibility of maintaining law and order in Society.  These functions are more succinctly provided for in section 4 of the Police Act and in the exercise of which powers the Police upon reasonable suspicion or formal report may arrest and detain a person for the purposes of carrying out their investigation. PER – BIOBELE ABRAHAM GEORGEWILL, JCA.

CASES CITED

Not Available

STATUTES REFERRED TO

Evidence Act, 2011 Constitution of the Federal Republic of Nigeria 1999 (as amended) Fundamental Rights (Enforcement Procedure) Rules, 2009 African Charter on Human and Peoples Rights

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