Legalpedia Citation: (2023-08) Legalpedia 68985 (CA)

In the Court of Appeal

Holden At Abuja

Tue Aug 8, 2023

Suit Number: CA/A/74/2020

CORAM

Elfrieda Oluwayemisi Williams-Dawodu JCA

Ugochukwu Anthony Ogakwu JCA

Jamilu Yammama Tukur JCA

PARTIES

1. NIGERIA SECURITY AND CIVIL DEFENCE CORPS
2. NIGERIA SECURITY AND CIVIL DEFENCE CORPS, FCT COMMAND
3. M.O. YUSUF
4. PETER OKLOHO

APPELLANTS

CHIEF GBENGA OLOBA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, FUNDAMENTAL HUMAN RIGHTS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The matter which culminated in this appeal emanated from a fundamental rights action instituted by the Respondent who claimed that the Appellants trampled on his constitutional rights and dignity as a person by subjecting him to inhuman treatments in the guise of carrying out an investigation in line with their powers and duties. He prayed the lower court to award the sum of N400,000,000.00 (Four Hundred Million Naira) only as compensatory damages and order a public apology for the breach of his fundamental human right to personal liberty and his dignity as a person.

The learned trial Judge found that the Applicant established by credible evidence, the violation of his fundamental rights by the Respondents and awarded the sum of N4,000,000.00 (Four Million Naira) as compensatory damages against the Appellants and public apology in two national dailies for the breach of the Respondent’s fundamental right to personal liberty and his dignity as a person. The Court also awarded costs of N500,000.00 (Five Hundred Thousand Naira) against the Appellants. Dissatisfied with the above decision of the lower Court, the Appellant appealed the judgment hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether the judgment of the trial Court is against the weight of evidence adduced or whether the Respondents/Applicant is entitled to reliefs granted by the lower Court on the strength and totality of evidence adduced before the lower Court?

Whether the Appellants/Respondents has any power or lawful authority to invite, question, investigate, seal, arrest and detain on reasonable suspicion that the Respondents/Applicants have committed a criminal offence or will commit a criminal offence by wearing and putting on uniform Insignias belonging to the Nigerian Army?

RATIONES DECIDENDI

APPEAL – WHERE AN ISSUE FOR DETERMINATION MUST BE DISTILLED FROM

The law is indeed clear as provided in the rules of this Court that issues for determination must arise/relate to the grounds of appeal contained in the Notice of Appeal. As a corollary to this, it is highly desirable that the said issues for determination be linked to the ground/grounds it relates to. I however do not agree with the Respondent’s assertion that the issues raised in this appeal ought to taken as incompetent because they were not specifically link to the grounds.

This is because the issues arose from the grounds. The Courts have moved away from technical justice that serves no purpose especially where the error is slight. The main reason for linking issues to grounds is so that it may be easy to determine whether the issues actually relate to the grounds…

This Court in the recent case of WEST v. FUBARA & ORS (2023) LPELR-59285(CA) (Pp 16 – 17 Paras B – B), succinctly captured the above where per Muhammad Ibrahim Sirajo, JCA it held thus:

“The law is settled that an issue for determination must be distilled from a valid ground of appeal and any issue that does not relate to, nor arise from a ground of appeal, is incompetent and irrelevant in the determination of the appeal. See A.G. Lagos State vs Eko Hotels Ltd & Anor (2006) LPELR-3161 @ 47, C.O.P. vs. Ogor & Ors (2022) LPELR-57558(SC). In framing issues for determination from the grounds of appeal, there is always the need for the Appellant to link or tie the issues so framed or formulated to specific grounds of appeal in the event of challenge to the competence of the issues by the adversary, as we are currently confronted in the instant appeal. While it is the usual practice and therefore desirable for the Appellant to link issues for determination to particular ground or grounds of appeal, I hold the considered view that failure to specifically link the issues for determination with the grounds of appeal will not be fatal to the appeal, so long as the issues formulated for determination can be traceable to the valid grounds of appeal, and the Respondent has not shown that he was misled by such failure. I will therefore not strike out the valid issues for determination and the valid grounds of appeal from whence they were derived”

See EFA v. EFA (2022) LPELR-56562(CA). – Per J. Y. Tukur, JCA

COURTS – THE PRIMARY DUTY OF THE TRIAL COURT IN RELATION TO EVIDENCE – EVALUATION OF EVIDENCE BY TRIAL COURTS

The trial Court has the duty to properly appraise the evidence before it. This involves but is not limited to a mere summary of evidence. The Judge is to sift through the gamut of evidence before it, isolate the material evidence and draw the right inferences. The evidence for each party is then placed on an imaginary scale and the direction of the party which the scale preponderates is the one entitled to a favourable judgment in civil proceedings.

The Supreme Court in the case of AMOBI v. OGIDI UNION (NIG) & ORS (2021) LPELR-57337(SC) (Pp 23 – 24 Paras D – A), per Amina Adamu Augie, JSC, described evaluation of evidence thus:

“The primary duty of the Court is to evaluate the totality of the evidence adduced before it and ascribe probative value thereto. Evaluation of evidence has been described as the “do or die” parallel in the adjudication process, and it means assessment or estimation of evidence by the Court to give credit or value to it. A civil case is won on the preponderance of evidence and where a Court is convinced that a party’s case is deficient in substance and weight or mired in confusion and not readily understandable, it cannot assist the Party – Ansa v. Ishie (2005) 15 NWLR (Pt 918) 210 SC. In effect, evaluation of evidence involves a reasoned belief of the evidence of one of the contending Parties and disbelief of the other or a reasoned preference of one version to the other one”.

See ALI v. UBA PLC (2014) LPELR-22635(CA), OGBONNA v. OGBONNA & ANOR (2014) LPELR- 22308(CA), and EZEKOYE v. OGUNLADE & ANOR (2017) LPELR-41954(CA).

The above principle is also applicable to proceedings which are determined based on affidavit evidence. It is the duty of a trial Judge to critically and carefully evaluate the Affidavit in support of an Application vis-a-vis the Counter-Affidavit or reply to Counter-Affidavit and relevant exhibits before deciding one way or the other just as the case with the trial conducted on pleadings. The Judge is still expected to make a reasoned assessment leading to belief or preference of the evidence of one party as against that of the other party, making the requisite inferences and findings thereon and reaching a final decision in the matter.

See NWITE v. PDP & ORS (2022) LPELR-59192(SC) per MOHAMMED LAWAL GARBA, JSC (Pp 34 – 37 Paras D – E), PHED NIG LTD & ANOR v. FBN & ANOR (2022) LPELR-57220(CA), OBI v. IGP & ORS (2022) LPELR-59141(CA) and NRC v. OJO (2021) LPELR-55971(CA). – Per J. Y. Tukur, JCA

FUNDAMENTAL RIGHTS – THE NATURE AND PROCEDURE FOR FUNDAMENTAL RIGHTS ACTIONS

Fundamental rights proceedings are sui generis. The procedure was laid down by the Fundamental Rights Enforcement Procedure Rules (FREP) 2009 and envisaged the hearings based on enforcement of fundamental rights to be based on affidavit evidence. Part of the reason for this is the intention behind the enactment of the rules which is to engender and encourage prompt resolution of fundamental rights cases to further entrench the rule of law and ensure that fundamental rights are respected by all and sundry.

In line with the above, this Court in NCS BOARD & ORS v. SUNDAY (2022) LPELR-56417(CA) (Pp 31 – 32 Paras F – D) per Ugochukwu Anthony Ogakwu, JCA held thus: “Actions for the enforcement of fundamental rights are governed by the procedure under the Fundamental Rights (Enforcement Procedure) Rules. It requires the use of affidavits for the speedy dispensation of fundamental rights actions. The actions are determined on the affidavit evidence of the parties, which affidavit evidence is properly evaluated by the Court to ascertain if the applicant had discharged the burden of proving that the fundamental rights were indeed eviscerated. See JACK vs. UNIV OF AGRIC, MAKURDI (2004) LPELR (1587) 1 at 13-14, ONAH vs. OKENWA (2010) 7 NWLR (PT. 1194) 512 at 535-536, MBANG vs. JANET (2014) LPELR (22656) 1 at 27 and GEORGEWILL vs. LAMBERT ELECTROMEC LTD (2021) LPELR (54469) 1 at 27-28”. See JACK v. UNIVERSITY OF AGRICULTURE MAKURDI (2004) LPELR-1587(SC), SSS & ANOR v. EL- RUFAI (2018) LPELR-45080(CA), HASSAN v. A.G. & COMMISSIONER FOR JUSTICE, KADUNA STATE & ANOR (2022) LPELR-58108(CA) and GOV. OF KADUNA STATE & ANOR v. BALLASON.

(2022) LPELR-57674(CA). – Per J. Y. Tukur, JCA

EVIDENCE – THE EVIDENCE USED TO RESOLVE FUNDAMENTAL RIGHTS PROCEEDINGS

Let me clearly state that there was no contradiction of a specie that required oral testimony in this matter at trial and a trial Court is enjoined to as far as possible resolve contradictions in the affidavit evidence in a fundamental rights enforcement proceedings on the strength of the exhibits so as to conform to the purpose behind of the special procedure for enforcement of fundamental rights in Court, that is quick and efficient hearings so that justice is achieved timeously.

See GTB v. AHMED & ORS (2021) LPELR-56368(CA) and BABALOLA & ANOR v. EMERGING MARKETS TELECOMMUNICATION SERVICES & ORS (2021) LPELR-55974(CA). – Per J. Y. Tukur, JCA

FUNDAMENTAL RIGHTS – DESCRIPTION OF FUNDAMENTAL RIGHTS

By virtue of the provisions of Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, the term fundamental and human right denotes:

“Any of the rights provided for in Chapter IV of the Constitution and includes any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act”.

Fundamental rights stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is fundamental because it is ensconced in the grundnorm, but even before the formation of the grundnorm, those rights or similar ones such as the right to life have existed since man began to leave the short, nasty and brutish nature. In the case of NAZAIRE v. EFCC & ORS (2018) LPELR-51021(CA), I had cause to briefly describe fundamental rights thus:  “First let me quickly restate the sacred and sacrosanct principle of law to the effect that humans beings are entitled to certain inalienable rights which devolve on them by virtue of their birth, some of which have been codified and given constitutional backing, termed fundamental rights, which include the right to freedom of movement and dignity of the human person. See Sections 34(1) 35(1) and 41(1) of the 1999 Constitution as amended”.

See NIGERIAN ARMY & ORS v. OYEWOLE (2021) LPELR-55113(CA) and NPF & ORS v. OMOTOSHO & ORS (2018) LPELR-45778(CA). – Per J. Y. Tukur, JCA

PERSONAL LIBERTY – THE EXCEPTIONS TO THE RIGHTS TO PERSONAL LIBERTY AND HOW THE EXCEPTIONS ARE TO BE EXCERCISED

The Supreme Court in the case of EZIEGBO & ANOR v. ASCO INVESTMENT LTD & ANOR (2022) LPELR-56864(SC) (Pp 7 – 7 Paras A – F) per MOHAMMED LAWAL GARBA, JSC “On its part, Section 35 provides for and guarantees the personal liberty for every person living in Nigeria and such liberty shall not be deprived, denied or interfered with except as may be provided for in the section. It is therefore clear that even though the right to personal liberty is a fundamental right, it is not an absolute right since the Constitution itself; the giver and guarantor of the right, recognises and provides for some and specific situations or circumstances which may warrant, allow or permit the limitation, restriction of or derogation from the right, as exceptions to the right. However, for any derogation, or limitation of the right to be legally and constitutionally excusable and availing, it must strictly fit into any of the enumerated situations or circumstances set out in the Constitution. See Agbakoba v. Director, SSS (1998) 1 HRLRA, 252, Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 3 14 (SC), lyere v. Duru (1986) .5 NWLR (pt. 44) 665, Fawehinmi v. Abacha (supra)”. See DIAMOND BANK v. OPARA & ORS (2018) LPELR-43907(SC), KEDCO & ANOR v. SINTILMAWA (2022) LPELR-57427(CA) and OGUJI v. DIVISIONAL POLICE OFFICER C/O OJO POLICE STATION, OJO, LAGOS STATE & ORS (2021) LPELR-56044(CA). – Per J. Y. Tukur, JCA

ARREST – THE CONDUCT OF AGENCIES IN THE EXERCISE OF THEIR POWER TO ARREST – DUTY OF AGENCIES TO RESPECT FUNDAMENTAL RIGHTS TO HUMAN DIGNITY

…the NSCDC has the authority to arrest and an examination of the NSCDC Act, reveals that that is the true position of things. It must however be clearly stated that the power of any Agency to arrest including but not limited to the Nigerian Police Force, the Economic and Financial Crimes Commission and the NSCDC is subject to the fundamental rights enshrined in and guaranteed by the 1999 Constitution of the Federal Republic of Nigeria (as amended). It is indeed correct to state that the right to liberty can be curtailed by a lawful arrest. It must however be reiterated that even a lawful arrest is not an exception to right to human dignity. Even during arrest and detention, the fundamental right to human dignity has to be respected. It was based on the above settled principle of law that this Court in the case ofIDISI & ORS v. AAKOO (2021) LPELR-55954(CA) (Pp 31 – 32 Paras A – C) per PAUL OBI ELECHI, JCA, held thus: “Being an officer of the lower Court, the Respondent was duty bound to carry out the service of the processes on the 1st and 2nd Appellants as assigned to him without hindrance in order for this Honourable Court to be fully vested with the jurisdiction to adjudicate over the matter. See Estate of Late Chief H.I.S Idisi vs. Ecodril Nig. Ltd. (2016) 12 NWLR (Pt. 1527) P. 355. Section 34(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended guarantees to every citizen of Nigeria, including the Respondent, the right to dignity of his person and no one shall be subjected to torture or inhuman or degrading treatment. This right is further provided for and guaranteed under Article 5 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. A9 Laws of the Federation of Nigeria 2004; Eze vs. Inspector General of Police (2017) 4 NWLR (Pt. 1554) p. 44 at Pp. 76-77 paras. H-B, per Oseji,JCA. As an officer of the High Court of  Rivers State, the Respondent has the legal duty to carry out the service of Court processes without any form of molestation by way of harassment, merciless beating or torture by anybody, including the Appellants. Therefore the acts of the Appellants in the harassment, merciless beating or torture of the Respondent while in the execution of his duty as an officer of the Court are unlawful, illegal and contrary to Section 34(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Article 5 of the African Charter of Human and Peoples’ Rights (Ratification and Enforcement) Act 2004”. The above is the reason why this Court in the case of OKAFOR v. LAGOS STATE GOVT & ANOR (2016) LPELR-41066(CA) held that the placing of an Applicant in black maria under degrading conditions constituted a breach of the Applicant’s fundamental right to human dignity. See KALU v. STATE (1998) LPELR-1655(SC), OGUNSADE & ORS v. A.G OF LAGOS STATE & ORS (2022) LPELR-58999(CA), IHIM v. MADUAGWU & ANOR (2021) LPELR-53906(SC), OSONDU & ANOR v. A-G ENUGU STATE & ORS and AKINOSUN v. COP, KWARA STATE & ORS (2020) LPELR- 49739(CA). – Per J. Y. Tukur, JCA

CASES CITED

NOT AVAILABLE

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. African Charter on Human and People's Rights (Ratification and Enforcement) Act.
3. Universal Declaration of Human Rights, 1948.
4. Fundamental Rights Enforcement Procedure Rules (FREP) 2009
5. Nigeria Security and Civil Defence Corps Act of 2003
6. Nigeria Security and Civil Defence Corps Act of 2007
7. Private Guards Act
8. Penal Code
9. Companies and Allied Matters Act

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