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NIGERIA ARMY VS FALMATA DUNOMA & ANOR

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NIGERIA ARMY VS FALMATA DUNOMA & ANOR

NIGERIA ARMY VS FALMATA DUNOMA & ANOR

(2021) Legalpedia (CA) 81141

In the Court of Appeal

HOLDEN AT GOMBE

Sunday, January 24, 2021

Suite Number: CA/G/305/2019

 

CORAM

JUMMAI HANNATU SANKEY

UZO I. NDUKWE-ANYANWU

JAMES GAMBO ABUNDAGA

NIGERIA ARMY  ||  FALMATA DUNOMA & ANOR

AREA(S) OF LAW

APPEAL

PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondents as Applicants in the Federal High Court, Maiduguri, filed a suit for the enforcement of their fundamental rights seeking for the release of the 2nd Respondent who was arrested and detained on the 13th May, 2013 at the holding centres, Giwa Barracks, Maiduguri by the Appellant as Respondent without prosecution and or arraignment before any Court of law. The Respondents alleged that the 2nd Respondent was arrested by the Appellant on 13th May, 2013 and detained. Since then the Respondents alleged that the 2nd Respondent was not arraigned and not released by the Appellant. The Respondents and the Appellant filed their respective affidavits. The learned trial Judge in his considered Judgment held inter alia that there were inconsistencies in the affidavit of the Appellant and thereafter found for the Respondents and granted the Respondents N300,000.00 as general damages and also ordered the release of the 2nd Respondents. The Appellant being dissatisfied with the judgment filed an appeal against same contending that the 1st Respondent’s scanty and thumb printed affidavit without an illiterate jurat was not enough to prove the allegation of the Respondents.

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HELD

Appeal Allowed

ISSUES FOR DETERMINATION

Whether the Respondents proved the allegation of unlawful arrest and detention of the 2nd Respondent by the Appellant Whether the burden of proof shifted to the Appellant leading to the Court finding of inconsistency or contradiction and the subsequent award of the reliefs/damages against the Appellant

RATIONES

AFFIDAVIT EVIDENCE – STATUS OF DEPOSITIONS IN AFFIDAVIT EVIDENCE

“In a matter decided on affidavit evidence the depositions stand or take the place of oral evidence per Bolaji-Yusuf in Nwosu Uche vs. INEC (2019) LPELR-48396. It is therefore, obvious that affidavit is evidence needed to prove this case. See Kraus Thompson Organization vs. NIPSS (2004) LPELR-1714. It is also settled law that an affidavit evidence constitutes evidence and depositions therein not challenged, is deemed admitted. See the cases of Ajomale vs. Yaduat No.2 (1991) 5 NWLR (Pt.191) page 226; Magnusson vs. Koikoi (1993) 12 SCNJ page 114; Henry Stephens Engineering Ltd. vs. S.A. Yakubu Nig. Ltd. (2004) LPELR-1714.

BURDEN OF PROOF IN CIVIL CASES – NATURE OF THE BURDEN OF PROOF IN CIVIL CASES

“The burden of proof in civil cases rests squarely on the prosecution. It only shifts when a substantial part of it has been proved. It has been said that the burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which party claims exist. It is this burden of proof that oscillates from one party to the other while the first type of burden of proof is called legal burden or the burden of establishing a case. The second one is called evidential burden. See Federal Mortgage Finance Ltd. vs. Ekpo (2004) 2 NWLR (Pt.856) page 100; Ogule Ankpa Agatu Co-operative Group Farming Society vs. Nigeria Agricultural and Co-operative Bank (1999) 2 NWLR (Pt.590) page 234; Okoye vs. Nwankwo (2014) LPELR-23172 per Peter-Odili, JSC.

AFFIDAVIT EVIDENCE – EFFECT OF A FAILURE TO COUNTER THE AVERMENTS IN THE COUNTER-AFFIDAVIT

“In National Insurance Commission vs. Aminu (2011) LPELR-19751, per Bada, JCA: “Under the rule of practice on filing and exchange of affidavit evidence, a party upon being served with a Counter-Affidavit containing a denial of the party’s allegation ought to file a further affidavit to counter the denial of his allegation. The effect of a failure to counter the averments in the counter-affidavit is that the facts averred or deposed to therein prevail and are to be relied upon by the Court. This is in accord with the principle that in civil cases, which are decided on preponderance of evidence, the burden of proof lies on the party or person who would fail if no evidence is adduced as provided under Section 137 of the Evidence Act Cap.112 LFN.”

AFFIDAVIT EVIDENCE – EFFECT OF UNCONTROVERTED PARAGRAPHS OF AN AFFIDAVIT

“In Lawson-Jack vs. SPDC (Nig.) Ltd. (2002) LPELR-1767, Ogundare, JSC held:- “Paragraphs of affidavit not denied nor controverted are deemed admitted. See Alagbe vs. Abimbola (1978) 2 SC page 39; Agbaje vs. Ibru S.F. Ltd. (1972) 5 SC page 50; Henry Stephens Engineering Ltd. vs. Yakubu Nig. Ltd. (2009) LPELR-1363; Ajomale vs. Yaduat (No.2) (1991) 5 SCNJ page 178; Magnusson vs. Koikoi (1993) 12 SCNJ page 114.”

BURDEN OF PROOF IN CIVIL CASES – ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES

“The burden of proof in civil cases lies on the plaintiff. See Sections 131,132, 133 (1) of the Evidence Act 2011. And until that burden is discharged, no burden shifts to the defendant. See Otanma V. Youdubagha (2006) PELR – 2821 (sc), P.15 Paras D-E. (2006) 2 NWLR (P.964) 337; Oduola and Ors V. Coker and Ors (1981) PELR – 2254 (sc), PP. 38-39, paras G-A.

BURDEN OF PROOF – WHETHER A PLAINTIFF CAN RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE WHERE A HE FAILS TO PROVE HIS CASE

“Where a plaintiff fails to prove his case, it does not lie in his mouth to pick holes in the respondent’s case because the law requires him to succeed on the strength of his case, and not to rely on the weakness in the defendant’s case. See Obele and Ors V. Medunoye and Ors (2018) LPELR-44170 (CA), PP.8 – 9, PARAS F-A.

STATUTES REFERRED TO

Evidence Act 2011|

COUNSEL

1.S. M. Attah With A Abubakar for the Appellant|2.Y Abubakar Holding the Brief of M Umar the Respondent|

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