CORAM

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PARTIES

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MR. BABAGBEMIGA O.A OLAIYA APPELLANTS

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INSPECTOR GENERAL OF POLICEASSISTANT INSPECTOR GENERAL OF POLICE ZONE IICOMMISSIONER OF POLICE, LAGOS STATETHE COMMISSIONER OF POLICE, FORCE CRIMINAL INVESTIGATION DEPARTMENTA.S.P. RAYMOND ODION AHAINEA.S.P. MOHAMMED SALISUENGR. ADETOKUMBO O.A COKER RESPONDENTS

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AREA(S) OF LAW

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Nil

 

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SUMMARY OF FACTS

The Appellant and 7th Respondent are contending for title to a parcel of land at Coker Estate, Oke-Shasha, Alimosho Local Government Area of Lagos State. The Appellant entered the land and being displeased by the encroachment, the 7th Respondent made a complaint to the police who arrested and detained the Appellant for seven hours and also confiscated the Appellant’s phones before releasing him. The Appellant thereafter instituted an action before the Lagos State High Court by way of Originating motion seeking to enforce his Fundamental Human Right. After due consideration of the case, the court granted one of the prayers and awarded the sum of N300,000.00 (Three Hundred Thousand Naira) only against the 1st to 6th Respondents and refused the other reliefs hence this appeal at the instance of the Appellant.

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HELD

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Appeal Dismissed

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ISSUES

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–  Whether the Appellant in this appeal, was not denied fair hearing by the trial judge, when he failed or neglected to consider and also failed to give a decision one way or the other on the issue of competency / reliability of the 1st to 6th respondents counter affidavit sworn to by 6th respondent on the 18th April, 2011 as raised by the Appellant, but the trial judge relied heavily on the said counter affidavit, to hold that the case of the Appellant / Applicant against the 7th Respondent thus failed and dismissed.-    Whether in view of the copious affidavit of the appellant which was not contradicted by the Respondents, coupled with the unresolved issue of the weight to be attached to the 1st– 6th Respondents counter affidavit sworn to on the 18th April, 2011, the learned trial judge was wrong and misdirected himself, to have dismissed appellants claim

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RATIONES DECIDENDI

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BALANCE OF CONVENIENCE – ON WHO LIES THE ONUS TO PROOF THE BALANCE OF CONVENIENCE

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“Consequently, the duty and onus lie on the Appellant to have shown conclusively why the balance of convenience ought to have tilted in his favour in a convincing and an unambiguous manner. See the case of Ogbuanyinya V Okudo No.2 (1990) 4 NWLR (Pt. 146) 551 and Bello V. A.G., Lagos State (2007) 2 NWLR (Pt. 1017) Pg. 115”. PER Y.B.NIMPAR,J.C.A

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AFFIDAVIT – CONDITION PRECEDENT TO BE FULFILLED TO RENDER AN AFFIDAVIT COMPETENT

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“Condition precedent to be fulfilled to render an affidavit competent was settled in the case of Dr. Muhammed Ibrahim Onujabe & Ors V Fatimah Idris (2011) LPELR – 4059 (CA) thus:
“The Oaths Act is a general statute that deals with Oaths. The provision under the Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing an oath before the commissioner for oath. It is on this vein that the provision under the Oaths Act becomes relevant. That is why a defect as regards the swearing an Oath is not a mere irregularity as to form but as to substance.” PER Y.B.NIMPAR,J.C.A

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EVALUATION OF EVIDENCE AND FINDINGS OF FACTS – INSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE EVALUATION OF EVIDENCE AND FINDINGS OF FACTS BY A TRIAL COURT

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“It is trite that the appellate court can intervene when a trial court has failed to evaluate the evidence before it or when the decision is perverse. See the case of Are V Ipaye (1990) NWLR (Pt. 132) 298 which held thus:
“I think it has to be appreciated that the evaluation and findings of facts are within the province of the trial court, and that an appellate court will interfere if such evaluation and findings are perverse and show a misapprehension of the facts.” PER Y.B.NIMPAR,J.C.A

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FAIR HEARING – DEFINITION OF FAIR HEARING

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“Fair hearing has been defined by the supreme court in several cases, one of which is the case of Kotoye V C.B.N (1989) 1 NWLR (Pt.98) 419 in the following way:
“Thus, fair hearing in the context of section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the sense of the twin pillars of justice audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”
Fair hearing therefore is basically comprised of the twin pillars which determines or circumscribes whether it was breached or not.” PER Y.B.NIMPAR,J.C.A

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COURT – DUTY OF COURTS TO CONSIDER ALL ISSUES BEFORE IT

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“It is settled that all courts are enjoined to resolve all issues one way or the other. The Supreme court in the case of A.G. Leventis Nig. Plc V Chief Christian Akpu (2007) 6 S.C. (PT I) 239 held thus:
“It is firmly settled that it is the duty of all courts to consider all issues placed before it except in the clearest cases.” PER Y.B.NIMPAR,J.C.A

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AFFIDAVIT EVIDENCE – DEPOSITION IN AFFIDAVIT

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“It is settled that any competent witness is qualified to swear to an affidavit as to facts within his knowledge or on information as stipulated in the Evidence Act. Once the required particulars are satisfied the affidavit will stand. An affidavit cannot be discountenanced purely because the officer had retired from service by the date he swore to the affidavit”. PER Y.B.NIMPAR,J.C.A

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FAIR HEARING – CONCEPT OF FAIR HEARING

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“Fair hearing is circumscribed by the twin pillars of natural justice and cannot be over stretched beyond universally and accepted limits. The Supreme court in the case of Magit V Uni – Agric Makurdi (2005) LPELR – 1816 (SC) had this to say:
“Fair hearing and what it is all about has been flogged……………………………
It has become a fashion for litigants to resort to their right to fair hearing on appeal as if the it is a magic wand to cure all their inadequacies at the trial court – But it is not so and it cannot be so………… the courts must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.” PER Y.B.NIMPAR,J.C.A

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COURT –DUTY OF COURT TO EXAMINE ITS RECORD IN DETERMINING THE ISSUE BEFORE IT

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“A court is entitled to view processes in the file and make use of it in arriving at a decision, see the case of Estione H. Nigeria Limited & Anor V Osun State Government & Anor (2012) LPELR (CA) where the court held as follows:
“The law is trite that a court of law is entitled to look into its record and make use of any document it considers relevant in determining the issue before it.”
See also Famudoh V Aboro (1991) 9NWLR (Pt. 214) 210 at 229; Agbareh & Anor V Mimra & 2 Ors (2008) 2NWLR (Pt.1011) 378 AT 411 – 412 and Womiloju V Anibire (2010) 10 NWLR (Pt. 1203) 545 at 561”. PER Y.B.NIMPAR,J.C.A

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CASES CITED

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STATUTES REFERRED TO

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Nil

 

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